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Dekkiian Agriculturists Relief Act ct 

XVH of 1879^1 of 1902. 



With complete Case Law, Explanatory Notes and 

Comments, Rules, Notifications H. C. Orders, 

and Abstracts from the Proceedings 

OF THE Legislative Council. 

BY 

Padmanabh Bhasker Shingne, B.A., LL. B., 

Vakil High Court, Bombay. 
AND 

Sadashiv Krishna Phadke, 

District Pleader. ^ ifX, ( S^ 



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Pmnted at thb Vwata PsmnHQ Press— 1906. 
APR 1 5 1936 



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PREFACE. 



When the Dekkhan Agriculturists' Relief Act was 
passed, it was meant to be in force in certain parts of 
the Dekkhan, and was enacted with the object of giving 
relief to the indebted agriculturists in those places 
where the Act was to be in force. As days went on, 
and the working of the Act was observed by Government 
of Bombay to be satisfactory, they used the power given 
to them by s. 1 of the Act, and from time to time 
extended some of the important provisions of the Act 
to various other districts of the Bombay Presidency, 
and by the notification issued in August last some of 
the provisions of the Act have been extended almost 
to the whole Presidency. (Vide p. 8, pt. I, of this book.) 

This step of the Local Government has contributed 
to attract the attention of the public generally and the 
bench and the bar specially to the provisions of the 
Act, as it has materially affected the procedure in civil 
suits as also the rights of contracting parties. Under 
these circumstances, the want of an exhaustive book 
on the Act was very badly felt — especially in the 
mofussil, both by the bench and the bar. We have, 
therefore, made this humble attempt with a view to 
remove this want. 

We have tried our best to make this little book 
useful to the reader, and we beg to be excused for not 
being able to do more. The Act evidently aims at 
checking and discouraging litigation and barring ap-' 
peals ; the operation of the Act, moreover, even now is 
of a very much resticted kind ; hence many a point of 



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iv Preface. 

importance and usefulness in connection with the Act 
has yet remained undecided by our local High Court. 
Our task has been thus great and difficult and so far 
as our humble means and opportunities allowed, we 
have tried to be faithful to the arduous task undertaken 

The book is divided into three parts ; the first part 
is so arranged as to give (1) the section, (2) the law 
on the point under the old section (if any), and (3) 
the Commentary. In explaining the scope or object 
of a section, we have freely drawn upon the proceedings 
of the Legislative Council, where they do, as a matter 
of fact, throw some light on the subject. The matter in 
the commentary has been arranged under appropriate 
headings — generally selected from the wording of 
the section to which it relates or from the cases 
under the same. In giving case-law we have not con- 
fined ourselves simply to head-notes of cases but we 
have faithfully gone through all the cases cited by us 
and have also given extracts from the judgments 
whenever needed. So far as the cases decided 
under this Act are concerned, we have followed 
the example of some learned authors in giving the 
names of the Judges who decided the cases, and 
have also given the years in which the cases cited from 
the Indian Law Report series were decided. And in 
order to make the first part a complete book of ref- 
erence, we have, under appropriate sections, given 
references to the notifications and the proceedings of 
the Legislative Council in connection with the Act. 

Part II begins with an exhaustive index of noti- 
^cations under this Act or having some kind of bearing 



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Preface. v 

upon it. The important notifications are given at 
length and grouped under appropriate headings. The 
notifications are divided into six headings: — (1) 
Rules for the management of the Collector, (2) Pro- 
cedure before Village-Munsifs, (3) Rules for the 
guidance of Conciliators, (4) Village-Registration 
Rules, (5) Miscellaneous notifications including High 
Court Circular orders, and lastly (6) Exemptions under 
the Stamp-Laws. These notifications have been correct- 
ed up to date and we have carefully denoted the places 
where amendments have been made and the notifica- 
tions by which they were made. 

Part III contains everything relating to the 
History of the Act which the reader, who wishes to be 
thoroughly acquainted with the provisions of the Act, 
is expected to read. This part contains (1) Statement 
of Objects and Reasons, (2) Abstract of Speeches of the 
members who moved the various Bills in respect of 
the Act in the Legislative Council, (3) Reports of the 
Select Committees and (4) Abstract of important speeches 
delivered in the Governor-General's Legislative 
Council by the learned members who took part in the 
passing of the enactments. In reporting the speeches, 
care has been taken to see that nothing important has 
been omitted and it is hoped that the reader will find 
this part specially instructive and interesting. 

In placing this book before the public we have, 
we believe, spared no pains in availing ourselves of all 
the material at hand and we leave it to our kind reader 
to see how far we have succeeded in performing our 
humble task. 

Before concluding we are bound to acknowledge 



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yi Preface. 

our obligations to Mr. D. G. Gharpure^ Special Sub- 
Judge y F. C. under this Act^ who very kindly enlighten- 
ed us on various points of importance arising under 

the Act. 

12tk July 1906. P. B. S. 

S. K. P. 



^% The ralings appearing in the Bombay Law Reporter are 
cited as *Bom. L. R.,' while the letters P. J. refer to the Printed 
Judgment series. The words, Bom., All., Mad., and Cal., refer to 
the I« L. R. series. 



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!> »:■ 



PART I. 

CONTAINING THE TEXT OF 
THE 

Dekkhan Agriculturists' Relief Act, 

1879 to 1902, 

With the Case-Law, Explanatory Notes & Comments. 



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••• ••• 



•t« XV— XVUl 



CONTENTS OF PART I. 

Subject. Page. 

Table of oases 
Fbeamble. 

CHAPTER I. 

Preliminary. 

Section. 

1. Short title 

Commenoemeut. ... ,,, 

Local extent. 

2. Construction. ... 16,24,32 

2A. Jagirdars, etc., to be deemed Subordinate 

'Jwdges ... ... 32 



Hi 



CHAPTER II. 

Of the hearing of certain Suits by Subordinate Judges. 

3. Application of this chapter.... ... ... 33^ 34 

4. Certain suits to be instituted in Courts of First 

Class Subordinate Judges. ... ... 44,45 

5. Snbordinate Judges not to act as Judges of Small 

Cause Courts. ... ... ... .„ 45 

6. Jurisdiction of Subordinate Judge and Small 

Cause Court. ... ... ... ,., 46 

7. Summons to be for final disposal of suit ... 47 

Court to examine defendant as witness. ••• „ 

8. 9. [ iZ^aZ^d ] ... ... ... ... 49 

10. No appeal to lie. ..• ... ... ... 50 



CHAPTER III. 
Of Suits and otner Proceedings to ivhich Agriculturists 

are Parties. 
11. Agriculturists to be sued where they reside. ... 53 

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Contents of Part L 

Section. Page. 

\% History of transaotions with agriculturist-debtors 

to be investigated. ... ... .•• 56,57 

13. Mode of taking account. ... ... ... 57,58,59 

13Ai In certain cases rent may be charged in lieu of 

profits. .*. ... ... ... 59 

14, 15. [ jR^p^aZ^i. ] ... ... ... ... 77 

15 A. Mortgagor entitled to decree for redemption 

though time fixed by mortgage Las not arrived 

or debt has not been paid. ... ..• 78 

15AA. Power of Court* to name some future date for 

payment by the mortgagor. ... ••• 82 

15B. Power to order payment by instalments in case 

of decree for redemption, foreclosure or sale. 84, 85 
Power to continue the mortgagee in possession. 
150. Power to order payment by instalments in suits 

for possession of mortgaged property. •.• 89, 90 

15D. Mortgagor may sue for account. ... ... 90 

16. Agriculturist-debtors may sue for accounts. ... 90, 91 
Amount of debts in such cases to be determined 

according to foregoing provisions. ••• 91 

17. Decree under section 16 may provide for pay- 

ment by instalments. ... ... ... 93 

Execution of decrees under this section. ... „ 

18. Payment into Court in cases under section 16... 94 

19. [ ZZ^p^aZ^dl. ] ... ... ... ... 94 

20. Power to fix instalments in execution. ... 95 

21. Arrest and imprisonment in execution of decree 

for money abolished. ... ... ... 97 

22. Immoveable property exempted from attachment 

and sale unless specifically pledged. ••• 98 

23. Chapter not to apply to Village-munsifs' Courts. 102 



CHAPTER IV. 

Of Insolvency) 

24. Subordinate Judges to have jurisdiction in agri* 

culturists' oases* •#• ... ••• 103 

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Contents of Part I^ xi 

Section. Page. 

25. Agriculturistd may apply for adjudioatlon in cases 

not provided for by Code, ... ... 104 

26. Modification of section 851 of the Code. ... 105 

27. Receiver. .,• ... ,,, ,., „ 

28. Proof of debts. .*• ... ... ... „ 

29. Immoveable property not to vest in Receiver, 

but may be managed for benefit of creditors. 106, 107 

30. Secured debts. ... ... ... ... 107 

31. Insolvent incompetent to sell, ect , property dealt 

with under sections 29 and 30. ... ... 109 

32 Scheduled debts discharged. ... ... 

33. Appeals barred. ••• •.. 



5> 



CHAPTER V. 
Of Fzllage-munsifs. 

34. Appointment of Yillage-munsifs, ••• 

35. Suits triable by them. ... ••• 
Jurisdiction of other Courts eJLcluded, 
Proviso. 

36. District Judge's power of revision. ... 

37. Power of Local GoveSjpment to make rules. 



... 


110 


... 


110, 111 


.«. 


9> 


... 


» 


• . > 


112 


••• 


113 



CHAPTER VI. 
OJ Concihation. 

38. Appointment of Conciliators. ... ... 114 

39. Matters which may be brought before Conciliator. 115 

40. Procedure thereupon- e-. ... ... 117 

Day for attendance may from time to time be 

postponed. ... ••• ... ... „ 

41. When all parties appear, Ooncilator to endeavour 

to reconcile them. ... ... ... 118 

42. Conciliator to hear statements of witnesses, etc.... 119 

43. Any agreement arrived at to be reduced to 



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xii Contents of Part L 

, Section. Page. 

writing. ... ••• ... ... 119,120 

44. Prooedare when agreement finally disposes of 

oase and in other circamstances. ••• ... 120,121 

45. Procedure where agreement is for reference to 

arbitration. ••• ... ... ... 124 

46. Certificate to be given to applicant if conciliation 

fails. ... ... ••• ..• 125 

47. Suit or application for execution, not to be 

entertained by Civil Court unless such certi- 
ficate is produced. ••• ... ... 125 

48. Allowance to be made in period of limitation. ... 129 

49. Local Government to make rales. ... ... 131, 132 



CHAPTER VII. 
Superintendence and Revision. 

50. Distiict Judge to inspect, ect. ... ... 138 

51. District Judge may withdraw case from Con- 

ciliator or Subordinate Judge, or sit with 
Subordinate Judge as a Bench for trial of 
any case. ... ... ... ... 138,139 

52. Appointment of Assistant or Subordiuate Judges 

to aid District Judge. ... ... ... 139,140 

53. Of revision. ... ... ... ..• 141 

54. Special Judge. ••• ... ... ... 141,142 



CHAPTER VIII. 
Registration by Village-Registrars. 

55. Appointment of Village-registrars. •.. ... 149 

56. Instruments executed by agriculturist not to be 

deemed valid unless executed before a Tillage- 
registrar. ••• ••• ... ... 150 

57. Such instraments to be written by, or under the 

superintendence of, a Village-registrar and 
executed in his presence. Attestation of such 
instruments, .•. ,.. „. ... 155,156 



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Contents of Part I. xiii 

Section. P^ge. 

58. Begistration of instrnmenis by Tillage-registrars. 157,158 

59. Consideration to be fally stated in every instra- 

ment executed before a Village-registrar. 158 

Pievioas instmments to be produced. ••• 158, 159 

Production of copy of previous instrument 

^hen to be permitted... ••• ... 159 

60. Registration under this Act to be deemed equiva- 

lent to registration under Indian Begistration 

Act. 1877. ... ..• .., ..• 160 

61. Superintendence of Village regbtrars and custody 

& destruction of their records. ... ... 160 

62. Exemption of instruments to which Government 

or any officer of Government is a party. ... 161 

63. Power of Local Government to make rules. ... 161 



CHAPTER VIIIA. 

Registratiofi of Instruments rej erred to in sectional! of 

the Indian Registration Act, 1811 - 

6 3 A. Mode of execution by agriculturists of instru- 
ments required to be registered under Act III 
of 1877. ••• •.« ••• •.• 162 



CHAPTER IX. 
Of Receipts and Statements of Account. 

64. Agriculturists entitled to written receipts; ... 163 

65. „ ,9 to annual statements of account: 164 

66. ,» 9, to have account made up from 

time to time in a pass-book.... 164 

67. Penalty for contravention of sections 64 to 66... 165 



CHAPTER X, 
Legal Practitioners. 
68. Pleaders, etc., excluded in certain cases, ••• 166 



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xiv Contents of Part L 

Section] Page. 

69, Power of Court to appoint pleader for agri- 

onlturist. ••• ••• ••• ••• 167 



CHAPTER XI. 
Miscellaneous^ 

70. Mortgages, etc., to be valid only when written. 168 

71. Bar of application of section 258, Act XIV, 1882. 168 
71A. Rate of interest allowable on taking an account. 169, 170 

72. Limitation. ... i.» ••• ••• 174,175 

73. [ /2^;)^aZ^. ] ... ... •.. ... 180 

7 3 A. Certain agricultural produce exempted from 

attachment, etc« ... ••• ... 181 

74. Civil Procedure Code to apply in Subordinate 

Judges* Courts. ... ... ... 181 

75. Additional power to make rules. ••. ... 182 
76« Bules to be published. ... ... ... 182 



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TABLE OF CASES. 



70 
66 

147 
93 



Abaji v. Gann 83 

Abaji V. Hari 126 

Abdul Gani v. NandlaL.., 174 
Administrator General of 

Bengal v. Premlall Mullick 3 
Agarchand v. Gundaya...lO, 179 

Alderson v. White 43 

Amarchand v. Lakshman 65 
Amichand v. Kaubu ... 28 
Amrita v. Nam ... 38, 44, 51 
Ananda v. Manaji ••• 99 
Annaji v. Bapuchand 3,28,44,66 

Appa V. Bapn 

Appa V. Gopal 

Apaji V. Atmaram 

Babaji v. Babaji 

Babaji v. Hari ... ••• 
Babaji v. Lakshman ... 
Babaji v. Maniram 

Babaji v. Vithu 

Babnrao v. Vishna 
Badaricharya v. Ramchaadra 
Gopal ... 147, 18? 

Bala V. Balaji 82 

Bala V. Shiva ... 
Balkrishna v. Abaji 88, 89, 97 
Balkrishna v, Dyanoba 86,95,96 
Balkrishna v. Mahadeo73,143,146 
Balkishen Das v. Legge 42, 43 
Balshet v. Dhondo ... J 01 
Banu V. Krishnarabhat ... 25 
Bapuji V. Mahadeo 101,152 

Bhagavandas v. Hathibbai 101 
V. Range 144,145 



Bhagirthibai v. Hari ... 86 
Bhagvan v. Ganu... 4, 52, 54, 69 , 

88, 124 
Bhanaji v. De Brito ... 145 

Bhau V. Antaji 68 

Bhau V. Gopala 31 

Bhau V. Hari 92 

Bhnpatiram v. Sonrendra- 
mohan ... •• 



Garvallio v. Narbibi 
Chakn Modan v. Dnllabh 
Chatarbhai v. Harbhamji 
" Chatar V- Mahada 

ijhinna Aiyan v. Mahomed 
Ohunilal v. Manishankar 
Coll. of Gorakhpur v, 
Palakhdari singh 



83 Cook V. Fowler 



81 
80 
69 



172 

173 
170 
173 
102 
2 
3 

2 
172 
29,30 
123 
82 
115 
86" 
43 
172 
173 



Dagdu V. Balvant 

Dandekar v. Dandekar ... 
Dattatraya v. Annaji ... 
Dattaram v. Bhiva 
Datto V. Balvant... 
Daitoo V. Ramchandra ••• 
155 Deen Dayal v. Het Narain 
Dhaudbhai v Dhatidbhai... 
Dhondi v. Lakshman 70, 71, 78 
Dinsha Kavarji v.Hargovandasl52 
Dipchand v. Gokaldas 10,97,99 
Dipohand v. Kashi ... 40,76 

Dnyanu v. Appa 28, 44 

Dolichand v. Dhondi ... 63,182 
Durgaram v. Shripati 115,126,130 
Dwarkojirao v. Balkrishna 18 



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XVI 



Table of Cases. 



Ennoda Soonduri Dasse© v. 

Oodhiibaath ... 

Paiz-DB-nissa v. Hanif-un- 

ui6sa«a» •«• •.• 

FuJcband v. Ser Kishmesh 

Gangadhar Sakharam v. 

Mahadu ... 3,126 182 

Gangaram v. Nemohand... 180 
Gangaram v. Punfimohand 16,180 

181 

Ganesh v. Balaji 131 

Ganesh v. Goviad ... 178 

Ganesh v. Hari 71 

Ganesh v, Kashi... ... 62 

Ganesh v. Kr'ishnaji 2,6,35.40,143 



|Javanmal v. Muktabai ..• 10,155 
170Jivaji v.Kaka ... ... 31,92 

Jotiram v. Devba ... 122, 133 
43 Jnggomohnn Ghose v. 

Manickohund... ...171, 173 

Kadappa v. Martanda ... 32 
Kamini v. Kali Prosunno 172 

Kanji V. Dhondi 154 

Kashinath V, Ambaji ... 74 
Kashiram v. Hiranand 6,40,41,51 
Kedari v. Gajai... ... 155,163 

Kesu V. VUhu 180 



Gopal V. Appa 173 

Gopal V. Yeshvantrao ... 65 
Goverdhan v. Yesu ... 66 
Govind Singh v. Kallu ... 38 

Govind v. Mavji 92 

Gulabpuri v. Pandorang... 29, 86 
Gyantnal v. Ramchandra 15,180 

181 
Guru Basaya v. Chanamalappa — 

143 



Khankar v. AH Hafez .., 42 

Khushalbhai v. Kabhai ... 80 

Kisandas v. Muktabai ... 80 

Kirpashankar v. Govinda 99 



Haibatrao v. Nathaji ... 123 
Hajarimal v. Krishnarao 178 

Haji Mahomed v. E. Spinner 170 
Hanmant V. Babaji ... 71 
Hari v. Lakshman ... 92 

Hari v. Sitaram 31, 92 

Hurro Chunder v. Shooro 
Dhone£)>..« *.c ... 1 

In re Ratansi Ealyanji 10,15,181 
Jafar Hussen v. Ranjit Singh 43 
Janardan v. Ananta ... 31, 51 
Janoji V. Janoji ... ... 75 



37,144,145 

27 

... 145 



172 

44 
68 



Kondaji v. Anau 

Kondi V. Gunda 

Kondumal v. Easiba 
Koondun Lall v. Ameer 
Hussun Khan... »•• 
Krishnaji v. Hari Janu... 
Krishnaji v. Saqjbhu ... 
Krishnarao v. Hari ...128,129 

Ladhajee v, Hari.., ... 55 

Ladu Chimnaji v. Babaji 87 

Lakshman v, Maina ... 65 
Lakshman v. Malhar ... 74, 83 

Lakshman v. Ramchandia 144 

Lakshman v. Ramji (pi II) 59 
Lakshman v. Rampiarbai 
Lakshman v. Sheik Abdulla 
Lakshmichand v. Arjuna 
Lalla Bunseedhar v. Koonwar 173' 

Lalli V. Ramprasad ... 172 

Laluchand v. Girjapa ..• 92 

Lincoln v. Wright .„ 43 



39 

89 

123 



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TaUe of cases. 



xvii 



Hadbaji v. Shivajl 
Madhavrao V. Raoji S7,50,l80 
Madhavrao v. Vitim 124, 131 
Mahadeo y. Mahada 151,152,154 
Mahadaji v« Kaiuehaadra 

35, 50, 51 
Mahada v. Bayaji ... 158 

Mahada v. Bajaram 64,65,70,71 
Mahalava v. Kasaji ••• 28, 102 
Mahalingapa v. Nemohand 15,180 
Mahamed Ali v. Nazir Ali 42 
Mahant Ishwargar v. 
Cbadarama ••• ••• 89 

Mahipatrao v. €fambhirmal 41,80, 

81 
Malapa v. Sbamji ^ ••• 79 
Malhar V. Chinta... . -. ...15, 180 

Malojiv.Vithu... &7, 70, 78 
Manaji v. Narajaarao ••• 45 
Mangal Prasad 100 

Mangniram v. Dhawtal — 173 
Maaohar v. Bhavani ... 143 
Manohair v. Gebiappa ...119, 130 
Miller v. Barlow, * ••• 170 
Modhesingh v. Kashiram 172 
Mohan v. Takaram 31,66.68,126 

182 
Moii Singh v. Bamo Hari 172 
Mnktaji v. Manaji ••• 145 
Mnlohandv. Baoji «•• 44 
Mnrari v. Hari 122 

Nanchand v • Bapn^aheb. . . 172 
Narayandas v. Kohdi 128, 182 
Narayaa v. Gangadhar ... 41 

Narayaq v. Viihal ••• 66 

Narso v. Narso ••• 

Nivas Ram v. Udit Narain 172 



130 North 



Eastern Railway v. 
Lord Hastings ... 43 

Padgaya v. Baji ..• 14, 27 

Pandharinath ¥• Shanker* ... 89 
Panda y. Gaaesh ••• 67 
Patel Ranohhod y. Bikhabliai 42 
Patlu y. Nara ...30, 61, 62, 63 
Pillai v.Pillai ... ... 171 

Prayag Kapri y. Shyam Lall 174 
Preonath y. Madhn Sadan 42 
Promotho Nathy. Kali Prasanna 2 
Parshottam y. Bhayanji 22,24,55 
Pntaji- y. Sadashiy ... 62, 63 
Qoeen y. Bishop of Oxford 2 

Q. Empress y. Bal Gangadhar 3 
Raghanath y. Anant 127,128,131 
Raghoonath y Gireedhari 69 

Rajai y. Appaji 51 

Rajaram y. Lakshman ... 28 
Raji y. Jaoardan 180 

Rajmal y« Krishna ... 123 
Rama y. Karim Khan ... 93 
Rama y. Ramchand ••• . 89 

Rama y. Yesa 41 

Rambhat y. Lakshman ... 27 
Ramohandra y. Bahira ... 87 
Ramohandra y, Draapadi 147,182 
Ramohandra y. Janardan 37,75,76 
Ramohandra y. Hari ... 70 
Ramohandra y< Kondaji 81, 89 
Ramohandra y. Takaram 70, 173 
Ramlaly. Dolabdass ... 173 
Ramlal y Ramohandra ..• 182 
Ramsing y. Babn Eisansing 147 

182 
y. Kalu..- 40, 146 

Ratanji y. Nama 124 



129Rango 



* See addenda^lip to page I 



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XVlll 



Table bf Cases. 



Rousac V. Thacker 
EayachAtid v- Saltan —143,144 
Rupchand v. Balvant 
Narayan ... 36, 37, 38, 51, 

Sadu V. Sambbu... 
Sah Lalchand v. Indarjit 
Sakharam V. Parvati ... 144 
Sakhar^m v. Shripati ..,44, 51 
Sail Kom Appa v. Nana 
Satis Ohunder v Hem ohunderl74 
Sayad Nyamtulla v. Nana 116, 
128,129, 131 
Shamlal v. Hirachand 14, 60 
Shankarapa v Danapa 83, 95 

... 178 



148 Swamin^th 



99Tatya 



154Talsidas v. Virbasapa 



Shankar v Mukta 
Shankarbhat v Raghnnath 

bhat... 
Sheik Gulam v. Kashinath 

Shidhu V. Bali 

Shivram v. Kondiba 10, 13, 100 
Shidu V, Ganesh ... ... 40, 51 

Shripat v. Sitaram ... 28, 44 

Sobha Chund v, Bhagubai 179 
Subhajiy. Shiddappa ... 61 



53 



173 

2 

66 
174 

29 
79 



Suryajiv, Tukaram 
Surya Narain V, Jogendra 

Naratn 

V. Vaidyanath 

a Vithoji v. Bapu ... 
43Trimbak v. Bhagohand ... 
Tukaram v. Bahirav ... 
Tukaram v. Ramchandra 

V. Virbasapa 6, 22, 23, 
27,36,48,53,54,60 

Uda Begam v. Itnam Uddin 16 
Umeshchundra v. Golap Lall 174 
TJsmanbhai v. Imratbhai 143 

Vasudeo v. Narayan ... 123 
Vasudeo v. Ramkrishna ... 178 
Venkatrao v. Bijesing ...101,130 
Vishnu V. Satwaji ... 72, 75 

Vishvanath v. Aba 147. 148, 182 



143vi8hvanath v. Bala ... 31 

Fithal V. Mahadaji ,.. 70 

Vithal V. Gangaram ••• 111 

Wamanrao v. Sambhu ... 169 

Wright V. Hale ... 10 

Yesu V. Waman ... 97, 99 



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XIX 

Addenda ct Corrigenda. 



AM the following as the last note under s* 15B : — 

Directions consequent upon default:— In a re- 
demption-decree passed under the provbions of the Dekkhan. 
Agriculturists' Relief Act, 1879, the Subordinate Judge made 
the decretal amount payable by instalments ; and further 
ordered *' on failure to pay any two successive instalments, 
defendant No. 1 do recover the whole amount due by sale ©f 
the mortgaged property and the deficiency, if any, from the 
plaintiffs personally. " On appeal the High Court annulled 
the above order and substituted in its place the following 
direction : " If the sum payable under the direction aforesaid 
is not paid when due, then defendant No. 1 will be at liberty 
to apply to the Court for such order as he may be entitled 
to under s. 15(b), sub- s. 2 of the Dekkhan Agriculturists' 
Relief Act."* 

♦Pandbarinatli v. Shunkar, (1903) 8 Bom. L. IL, 488 ( JeDki.iB, 
C. J. and Jaoob, J J.) 



Part I, p. 28, line 31— for '1893 P. J.,' read «1883 P. J.- 

Part I, p. 44, line 30-for a893 P. J.,' lead M883 P. J.' 
Part I, p. 69, line 29— for 'net profits,' read 'net piofits.^' 
Part I, p. 71. line 33~for <P. J., 21G » read *1887 P. J. 216.' 
Part I, p. 76, line 13 — for <Janojii/ lead «Ja»>oji.» 

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Addenda et corrigenda xxi 



Part I, p. 83, line 34— for «1889 P. J.,» read a889 P. J. 77.' 



tX, ^ il^ line S3 — for ^vithout the consent of,* read 
' with the consent of.' 



Part I, p. 97, line 33— for <VoI. XVII, p, 47,' read <Vo). 
XVII, p. 147.' 



Part I, p. 101, line 18— <for proviso (e),» read ^proTiso (c).' 



Part J, p. 104, line 13— for * transferred' lead < dealt with. ' 



Part I, p. 126| line 20 — for 4n another case,' read 'in another case.^' 



Part I, p. 127, line 10— for <Gangadhar v. Blahado,' read 
' Gangadbar v. Mahada^ ' 



Pt. I, 1.32, foot-note, last line, for < ordinary reader,' read « general 
reader. * 



Part I, p. 163 line 30--for < defendant, by any one, » read 
defendant, from proving payments made by Lim by any one.' 



Part II, p, 23, lines 23-24, omit the words * the contract, 
notification.* 



Part III, p. 67, line 24— for < or debt,' road « for debt' 

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Dekidian Agricnlturists' Relief Act 



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THE DEKKHAN AGRICUITHRISTS' 
RELIEF ACT. 



A.ot; INTO, jsc^^rxr, or ±mzjir&^. 

Modified wto Datb. 

An Act for the Relief of Indebted Agrioulturisti 
in certain parts of tiie Dekkhan. 

— PA8SBD BY THE — 

GOVERNOR-GENERAL OF INDIA 

IN COUNCIL- 

(Received the assent af the Governor^General on the SiOth 

October, 1879. 



The title of an Aot may be resorted to, to explain an enaietini^ 
part i^hen doubtfaK^ 

Preamble.— Whereas it is expedient to relieve 
the agricldtural classes in certain parts of the Dekkhan 
from indebtedness ; it is hereby enacted as follows :*- 

Commentary. 

The Preamble of an Act is usually of great importancr 
in constraing the extent of the operation of the law and tfaould 
be tead with its seotiona.* 

(1) Hurro Chunder Roy y. Shooro Dhonee, 9 W. B., 402 (P. B,) 

(2) Fulohand v. 8er Kishmesh Koer, 4 0. W, N.| ccxyK 



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2 Gonstructioh^ 

A Preamble of an Act cannot be taken to have cut down the 
exprewi proviSon thereof.^ Whilst it may be consulted whenever 
the enacting part is. open to doubt, it cannot either restrict or 
extend the enacting part when the latter is free from doubt.s The 
enacting word of a Statute may be carried beyond the preamble, if 
words be found in the former strong enough for the purpose.^ 

Act--how to Construe. 

A Statute ought to be construed so that, if it can be prevented* 
no clause, section, or word shall be superfluous, void or insignificant.^ 
Generallyi an Act must be so construed as to advance the objecte 
contemplated by the Legislature.* 

In the construction of Statutes, in the first instance, the gram- 
matical sense of the words is to be adhered to; if that is contrary 
to, or inconsistent with, any expressed intention, or any declared 
purpose, of the Statute, or if it would involve any absurdity, 
repugnace, or inconsistency in its different provisions, the grammati- 
cal sense must then be modified, extended or abridged So far as 
to avoid an inconvenience, but no further .6 

It is a well established rule of construction that when the 
terms of an Act are clear and plain, it is the duty of the Court 
to give effect to them as they stand according to their plain 
meaning, neither adding to, nor subtracting from, them. The 
Legislature must be taken to have intended to mean what it has 
so j^lainly expressed ; and when the terms of an Act admit but one 
i!&eaning, a Court is not at liberty to speculate on the intent 
of the Legislature, or to construe them according to its own 
notions of. the reasons supposed to have been the cause of its 



Jl),OoUector pf Gorakhpur v. Palakdhari Sing, 12 All., 35; Bee also 
3 Bom. L. K., 548. 

(Q) GaneBh Krishnaji v. KriBlmaji, (1889) 14 Bom., 387, (Scott and Candy 
JJ.) A case under thiB AcU 
^ (3) Clxinna Aiyan v, Mahomed Fakrudin, 2 Mad. H, C. R., 322. 

(4) Swaminath Ayyar v. Vaidyanath Shastri, 28 Mad., 466; following 
TJ^ Queen v. Bishop of Oxford, L. R., 4 (}. B. D. 245. 

(5) RouBsac V. Thacker, 1 Hyde, 9, 11, 12, C. F. 

(6) Promotho Nath v. Kali Praaanna, 28 Col., 744 (748), 



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C^oiistructioii. S 

e&actnmnt. The primary qoestioD, ia dborfc, is not what may be 
supposed to have been mteiided, biii what has been said.^ Where, 
however, aa Act has been considered not to clearly express* 
the intention of the Legislature, it was once the practice of the 
majority of the Indian High Courts to refer to the previous history 
of the law and legislation; but the Privy Council have eikpressed their 
disapproval regarding the practice of referring to the proceedings* 
of the Legislature which result in the passing of an Act^ 

Cases under this Act. 

(a) It may be that certain inconvenience will arise from the 
construction of the enactment in its literal sense; but that is" 
no reason for a court to amend the work of Legislature according 
to its own notions of fitness.^ '- The intention of the Legislature 
is to bo ascertained from the grammatical sense as applied to 
the object in view ** and ^^considerations of policy are to be excluded 
where the words are clear,''* 

(6) The Code of Civil Procedure and this Act being within the 
territorial range of the statutes in pari materia must be construed 
together so as to give effect so far as possible to the provisions of each. 
Auother general principle is that exceptional provisions are not 
to receive a development to all their logical consequences contrary 
to the general principles of the law.^ 

(c) So far as the provisions of Act IV of 1882 relate to pro- 
cedure, and are not inconsistent with the D. A. R. Act, they control 
proceedings under the same. But where, as in ss, 15 A, 15B, 15G 

(1) See the Introduction to The Law of Evidence by Ameer Ali aod 
Woodroffe^ (3rd ED., pp. 16, 17.) wiiere the learned authors discuss this 
point at length. 

(2) The Administrator-General of Bengal v. Prem Lall MulUck, 22 Cal., 
788; 8. C. L. it. 22. I. A. 107. This decision of the Privy Council has been 
followed by a Foil Beucb of the Calcutta High Court : 22 Cal., 1017 ( 1022 ), 
and by Strachey, J. of the Bombay Hi^h C. in Q. Empress v. Bal Gangadhar 
Tilak, 23 Bom., 112. Compare Chunikil v. Manisbankar, 18 Bom., 616. 

(3; Annaji Waghnji v. Bapuchand Jethiram, (1883)7 Bom., 520 ( West 
aud Nanabhai, JJ. } 

(4) See oases cited in the judgment of West, J. in 7 Bom., 520. 

(5) Gangadhar Sakharam v. Mabadu fcfanta ji, (1883) 8 Bom., 20 (West 
and Nanabhai, J J.) ' 



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4, Special features* 

15D, 16, 20, 22 and 70, the D. A. R. Aot oontaifls provisions 
direotly inconsistent with those of the T. P. Act, they are saved by 
s, 2 (a) of the latter Act^ 

Special features of this Act. 

The T>. A. E. Act makes a few modifications here and there ia 
some of the branches of the civil law. The special features of 
the Act, as given below, would sufficiently bear out the truth of 
this statement:— 

(a) The Act makes certain changes in the jurisdiction of 
Courts and creates Special Jurisdiction in revision and 
supervision.* 

(b) The general tendency of the Act is to bar appeals.' 

(c) The Act enables the agriculturist-debtors to get fnll 
accounts on liberal terms from the creditors in spite of 
any contracts between the parties to the contrary.* 

(d) It saves the persons of an agriculturist-debtor from arrest 
and sa\es his immoveable property from attachmeut 
and sale, unless specifically pledged.^ 

(e) It provides an insolvency procedure more liberal to the 
debtor than that in the Code of Civil Procedure.^ 

(/) It gives a great deal of facility to the debtor in the 
payment of his debt by way of instalments or other* 
wise.^ 

{ff) It establishes new Courts of Village-Munsifs and thus 
enables the parties to get justice at a little cost and 
much nearer their homes.^ 

(1) Bhagvan v. Gauu, (1899) 33 Bom., 644, (1 Bom. L. R., 136.) 

(Parsous, Acting C. J. and Ranade, J.}. 

(2) Chaptera II, VII and «. 36; see also as. 2A, 11 & Oh. V. 

(3) Sa. 10, 33, 36, 44, 54, and 73 ( now lepealed). 

(4) 88. 3 (CL fl), 12, 13, laA, 15D, 16 and chapter IX- 
(6) Sa. 21 23, 29, 73 A, 

(6) Cljapter IV. 

(7) S, 15A, 15B, 150, 17, 18, 20, 71A, 72. 

(8) Chapter V. 



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Specif features. ^ 

{h) It eoGonrages the settlbg of disputes out of Court hj 

ooQciliation« ^ 
ij) To avoid dishonesty or fraud in acoonnts, docnmenlto 
or pleadings, it introduces a system of Begistration 
much wider in its soope than the one in &e Indiaa 
Eegistration Act and requires the recording of certain 
transactions in writing and makes certain important) 
provisions for the examination of parties to a smt 
and for keeping and rendering accounts to agriculturist- 
debtors.' 
'0 It abolishes the agency of pleaders in certain cases; 
while it empowers a Subordinate Judge to give pro- 
fessional iEissistande to agriculturists in proper cases.3 
(k) It empowers the Court to reduce and regulate the rat9 
and amount of interest, allowing simple interest in all 
• cases.^ 
(T) It extends the period of limitation in certain suits for 

the recovery of money .^ 
(m) Certain notifications under the Act go to reduce and 
exempt the stamp duti(« in certain cases.^ 
All these concessions and modifications are chiefly intended for 
the benefit of agriculturist-debtors residing in those parts of iho 
Bombay Presidency where the Act extends. 
— i '^ 

(1) Chapter VI. 

(2) Chapters VIII, VllIA, IX, and as. 7, 12, and 70. 

(3) Ch. X. 

X4) Ss. 13 and 7lA. 

(5) S. 72. 

(6) Notification No. 4050_B, G. G., Pt. 1 pp. 50G— 509 

1889 



6822^ ,, „ 868 

1884 

785_ „ „ 250—262 

1899 

1472 255 

1904 



« g 

'St: 
a s 

o 
O 



^e also H. C._Circular Orders, No. 117. Pt. U of this book, pp. 68, 59* 

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^ Applicaticm of this Aet 

Apptica4:ioh of this Act. 

This Act was originally intended for the'relief of a^gricnlturists- 
in the Districts of Foona, Satata^ Shola^ur and Ahmednagar. 
By the Amending Acts of 1886 and 1895, the Logislatare enabled 
tte Local Government to eltend the Act in whole or ia part ta 
other districts or places in the Presidency of Bombay. The Local 
Government have from time to time exercised this power ; this ^ill 
be clear from J;he table given under s. 1— Yide p. 8 post 

Although the Act in its preamble professes to , be for the 
relief of< indebted agricultarists, the enactment goes beypnd the 
preamble ; and some of its provbions are applicable (a) to 
agrioaltnrists who are nod indebted, and also (b) to those who 
are not agricalturists at all.^ Thus the provisions of ConciliatioD 
apply to agriculturists whether indebted or not; and provisions- 
in clauses (w) and (x) of s, 3 and those in Chapter V (which relates^ 
to VilUge-Munsifs) apply to those who are not agriculturists*, provided 
certain conditions are fulfilled. Those conditions^ are that the 
suits in question must be in amount or claim under Bs. 500, lOO 
(or 10) according to the class of Court in which they are instituted 
and must have arisen in the districts to which the Act applies.^ 
Uven other provisions of the Act such as s. 3 clauses (y) and (z), 
f». 11^ 12 and the like evidently go to relieve non-agriculturist* 
debtors when they are joined with one who is an agriculturist. 

Chapter V and VI though recently extended to this Presidency 
can, of course, have no application where Village- Munsifs and 
Conciliators are not appointed. And in those places where Ch. II 
is not applied and Village-Munsifs and Conciliators are not ap- 
pointed, Oh. Vn also will have no application. 

The retroactivity of the Act in general and pendente lite is 
discussed at length hereafter ( see Notes to s. 2, pp. 9-12). 

(1) S«e TulBidas v, Virbasapa, (1880) 4.Boin„ 624. (West, J.) 
(*2) The conditions given are by no means exhaustive. 
(8) Vide 4 Bom., 624, at p. 628; and Ganesh Krishnaji v. Krishnajv 
(1889) 14 Bom^ 387 (Scott and Candy, JJ.) and Kaahiram Mulchand v* 
Hiianand Surtaram, (1890) 15 Bom., 30 (Birdwood and Candy, J J.) 



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CHAPTEH L 
PRELIMINARY. 

I. Short title.— This Act may be cited as the 
Dekkhan Agriculturists' Relief Act, 1879: 

Commencement. — and it shall come into force on 
the first day of November, 1879, 

[^] This section and [*] sections 11, 56, 60, 
and 62 extend to the whole of British India. The rest 
of this Act extends only to the districts of Poona, 
Satara, Sholapur and Ahmednagar, [^] but may, 
from time to time, be extended wholly or in part by 
the Local Government, with the previous sanction of 
the Governor General in Council, to any other district 
or districts in the Presidency of Bombay [^] [^] or 
to any part or parts of any other such district or 
districts I^]. 

Commentary. 

" Local Extent **: — Section 11 determines the place of suing 
an agriculturist in cases falling under s. 3. oL (w), and Sections 56, 
60 and 62 refer to registration under tbis Act. 

'* British India **: — British India shall mean all territories and 
places within His Majesty's dominions which are for the time being 
governed by His Majesty through the Governor General of India 
or through any Governor or other officer subordinate to the 
Governor Geueial of India.* 

Subsequent extension of the Act. 

In exorcise of the power conferred by tbis section, this Act has 
been in part extended from time to time to other districts in the 
Presidency of Bombay as shown in the table below. 

(a.a) The words were in.^erted by Act XXIK of 1681, 8. d, and are 
to be deemed to have always been inserted. 

(b«b) These words were added by Act XHI of 1886, s. 3. 
(c-c) These words were added by Act VI of 1895, s, 4. 
(1) See General Clauses Act < Act X of 1897), s, 3, cl, (7), 



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^ 



S« X Local exteni. 



A table showing the extent of the Act* 



The proviflions of the 
Acr. 



Places to which they 
oxteiid. 



By virtue of what 
authority. 



The whole Act. 

Ss.l, 11, 56, 60 & 62. 
Ss. 2 and 20. 

Ditto. 



Chapters V, VI and 
VII, so far as they 
relate to the pro- 
ceedings of Village 
Monsife and Conci- 
liators. 

Chapter III, ss. 2, 7 
and71A. 



Ss. 7,11 to 21, 23, 
Chapters V, VI, VII 
and s. 71A. 



Districts of Poona^ Sa- 
tara, Sholapnr and 
Ahn)edDagar. 

The whole of British 

India. 
District of Khandesh 



All parts of the Presi- 
dency of Bombay 
(except Aden) in 
which those sections 
are not already in 
force. 

District of Khandesh 



Province of Sind.* 



All Districts of the 
Bombay Presidency 
excluding those to 
which they are al 
ready extended and 
excluding Aden and 
the city of Bombay t 



S. 1. of the Act. 



S. 1. of the Act, 

Notification No. 3154, 
dated the 14th May 
1902;B. G.G. for 
]902,pt.I, p. 776. 

Notification No. 278, 
dated the 21st Jaii.| 
1903 ; B. G. G. for 
1903, pt. I., p. 89. 



Notification No. 620, 
dated the 3rd Feb., 
1903 ; B, G. G. for 
1903, pt, I. p. 144. 



Notification No. 1663, 
dated the 13tb Mar. 
1903; B. G.G. for 
1903, pt, I. p. 490. 

Notification No. 4144, 
dated the 15tb 
Aug., 1905 ; B. G. 
G. for 1905, pt, I. 
p. 1038. 



♦ 8ee of notification No. 1664, B. G. G. for 1901, pt, L, p. 490. Vide 
Part n of this book. 

t City of Bombay (Presidencytown^ : shall mean the local limits for the 
time being of the ordinary original civil jarisdiction of the High Court of Jndu 
Oatare at Bombay. (8ee s« 2, sub-seotion, 41 G€nera1| Clauses Aet, X. of 1897*} 



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Bepealing aad Amendiiigi Aots. 

The D. A,B. Act (XVU of 1879) has nadergone many 
changes aud has been maoh added to bj sabseqaent eaaotments. 
A list of the enaotmeats and the time when tbej oame into force are 
given below. 



Hnmber of the Aot> 


Time when it came into finree» 


Act XXm of 1881. 


26th October 1881. 


' „ XXII of 1882. 


Ist Pebrnary 1888^ 


„ XXlII<rfl886. 


Ist Janvary 1867. 


„ XII of 1891. t 


2l0t March. 1891. 


„ VI of 1895. 


1st May 1905. 


„ XVI of 1896. t 


10th October 1895. 


„ I of 1902$ 


Ist March 1902. 



This Act may be cited as D. A. IL Acts 1879 to 1902.* 

The Act haw far ratyjaspjsiqjiye. 

In the absence of any guide to th^ ascertaiainoB^t of - the 
iateotion of Ijegislatnre, thp ptesomption is that a Statute depriving 
tiro subject of vested rights is not retrospective. It may well b« 
that such a presumption does not exist where a- statute is remedial 
M merely alters pro^cedure^ and that the Courts are boup^ to 
advance tbd remedy and apply the improvement in procedure, re^ 
trospectively, as was done to a limited extent in WngUv^HaU; 

t These Acts are general repeallog and amending Acts and ar.e.not oon^ 
fined to the L). A. R. Act onlj. 

X This is a Bombay Act. Ail the other Acts, enumerated inWth^. al^Qi^e* 
list, are of The Supreme Legislative Council. 
♦ See Bombay Act I of 1902, s, I (l), 
3 



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10 S.I. Act iow for retrospective, 

but if the change in procedure when sought to be applied retros- 
pectively be compUoatedby tJm divestment of a preexisting right 
then the presumption agaiast such an intention revives in its full 
strength.^ / 

In short, the general rule is that Aofe are prospective, not 
retrosp<)ctiv«, in their operisktion. To this rule there are two excep- 
tions (a) when Acts are expressly declared to be retrospective, (F) 
when they only affect the procedure of the Court.* 

Where an Act is expressly made retrospective, no difficulty of 
oonstruction or applioation would arise; but where the Act does 
not so express the intention of the Legislature clearly, then we 
submit, the only test is to see whether the Act deals with " substantive 
or adjective law. . The determination of this question is not however 
free from difficulty. And the difficulty is the more felt in inter- 
pretation of Acts, like the D. A. R. Act, which contain provisions, 
both substantive and adjective. In giving illustrations of provisions 
which^ merely affect the procedure in Courts of justice, Pollock 
0. B. in Wright v. Hal^ referred to those relating to the service 
of proceedmg and what evidence must be produced to prove 
particular facts. 

Adjective law would thus include those provisions which are 
merely remedial, which lay down the mere procedure of the Court 
but which do not affect any vested rights of the parties. Now, in 
connection with the provisions of this Act which have been applied 
long since, the question loses its practical importance and need noi 
be discussed here. The provisions which hav« been recently 
extended to the Bombay Presidency (excluding of coarse the 
above mentioned four districts) are ss. 7, 11-to 21, 23, Ghapterf' 
V, VI, VII and s. 71A, No question can arise as to g. 23 and 

(1) In Re Ratansi Kal^^anji, 2 Bom., 216 (F. B.). Wnght v. Hale 6 H 
N. 227. See also 5 M. I. A. 309 ; 8 C. W, N. 201 (P. C.). 

(2) JavanmalJifcmal V. Muktabai, (1890) 14 Bom., 617; (Telan^ and 
Scott 3j,\ Bee Shivram y. Kondiba, (1884)8 Bom., 345 ; (West and Nan a^. 
y. ??;> .'. yf'''''i ^- Gokuldas, (1880) 4 Bom., 363 ; (Westropp 0. J. and 
Melvill8]j.);Agarchand v. Gundaya,, 1884, P.J., 50. These are cases under 
this Act. 

1, ^V f^r^:^.^ "forredto in the judgment of Westroph Q. J. in 
R«. Ratanri Kalyanji, 8. Bom., 216. (P. B.). 



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S, t/Acthowftif retfospectlve. 11 • 

CBapiers V and VII which can have no retrospective effect. The 
provisions of chapter Yl cannot afSdct suits instituted before the 
Conciliators are appointed. The Chapter, is however, expressly 
made retrospective as to decrees which are passed before the Act 
oatne into force. Bat even in ex.ecntion of snch decrees, the 
darkhasts filed before the appointment of Conciliators cannot. 
it is evident, be affected by the Chapter, Now, ont of the 
remaining provbions, ss.l5B, 20 and 21 (as they now stand) 
are made expressly retroactive, so far a3 they relate to decrees passed 
before the Act came into force and they would equally affect 
proceedings which might be pending at the date of the es^tension of 
the provisions given therein. Of the remaining sections, ss« 15 D, 
16, 17 and 18 introduce new remedies and would, it is submitted^ 
validate like suits, and proceedings, if any, pending when the sections 
were extended. But the sections cannot have any retroactive 
operation to a greater extent* Sections 15 A, 15 A A and 150 also 
may, to a certain extent come under the same category. 

The rest of the sections have reference to s. 3 of this Act. 
From section 3 cl. (a) the words " on or after the Ut day of 
Novemher 1879y^ and from cl (ft), the words, " on or after the same 
date,'' were repealed by Act XVI of 1895. Lawyers and practi- 
tioners in the moffussil are trying to put different interpretations 
upon the repeal of these words. On one side, it is argued that if 
the section, as it originally stood was expressly prospective, the mere 
repeal of the above words, which had become nugatory by lapse of 
time, cannot, without more, give the section a retroactive operation. 
On the other side, it is argued that as these words in particular 
have been omitted by the repealing Act of 1895 the section 
has got a retroactive operation by implication. Indeed, in the midst 
of this difference of opinion, it is important to note that the Act 
XVI of 1895 which repeals the words from s. 3, as mentioned 
above, is a general repealing Act and is not solely confined to 
ihe D.A,R. Act. i 

(1) The preamble of Acfc XVI of 1895 runs thus : « Whereas it is 
eipedient that certain euactments specided in the Ist Schedule to this Act, 
iwbich are spent or have ceased to be in force otherwise than by express 
specific repeal or have by lapse of t\me or otherwise become unnecessaryi 
should be expressly and specifically repealed, &c. 

Section 3 of the same Act XYI. of 1895 provides, (amongst other 
things,} that the repeal by that Act of any enactment >yould not provide or 



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The ^nly tUing ihat noW rendaio^ ia to ftfloertaiii wbe^t the 
provWoiis of seotioDB 7,11 to 18 and of UA are adjeotive or 
anfasta^ve. Ss. 7 and 11 contain provisions ^hich are adjective ; but 
firotii ill* Wording of those sections they seem to apply to snita 
Which are instituted aftier the sections came into force. The rei^ of 
43ie sections go to afFect more or less tte tights of the parties C0B- 
tx^med, and, therefore, they cannot be considered as retrospective. 

Effect of change of l^w pendente lite- 

Tbongh the utility of the rnlings noted under thb heading 
«io longer exists lor the pnrposes of this Act, unless it is revived by 
snbseqaeat changes in the law as laid down by this Act, the principles 
laid down in the cases are of general importance, and we propose 
to state the same here at length. The cases have mach to do with 
8. 6 of Act 1 of 1868 which is as follows :-« 

TheTepealofany Statute, Act, or Kegnlation shall not affect any 
thing done, or any offence committed or any fine or penalty 
incarred, or any proceedings conimenced, before the repealing 
Act shall have come into operation. 

This section has been snbstitated by section 6 of the Oonsolida- 
ting (Act X of 1897) which runs as follows :— 

Where this Act, or any Act of the Governor-General in Ootincil 
or Regnlation made after the commencement of this Act, 
repeals any enactment hitherto made or hereafter to he made, 
. then, nnless a different intention appears, the repeal nhall not, 

.(u) revive anything: not in force or existing at the time at which 
the repeal takes effect ; or 

(b) affect the previous operation of any enactment so repealed 

or anything daly done or suffered thereunder ; or 

(c) affect any right, privilege, ohligaticn or liability acquired 

accrued or incurred under any enactment so repealed ; or 
{d) affect any penalty, forfeiture or punishment Incurred in respect 
of any offence committed against any enactment so repealed ; or 
(e) affect any investigation, legal proceeding or remedy in respect of 
any such right, privilege, obligation, liability, penalty forfeiture 
or punishment as aforesaid; and any such investigation, legal pro- 
ceeding or remedy may be instituted, contiaued, or enf or^, and 
any such penalty, forfeiture or punishment may be imposed as 
if the repealiog Act or Regulation had not been passed. 

restore any jurisdiction not then existing or in foroei and would not 
4^ei9t th9 validity or iqvalidity otany proceeding kQ, &o« 

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«.t«Bibct«raiiftgiB«f3tattt«. 13 

Tara&ig io ifae point iodioftted by the bead note, it b io be 
noted ikei/k the repeal of aa Act is not to a£Pect any proceeding 
bagan nnder the Act. If the repeal of an Act is not to affdci 
pending proceedings, mnch less, it may be said, Bhonld &e amend- 
ment of the Act have this conseqoence. This proposition is 
generally tree, but it is to be taken with another one, viz, when 
on a general law especially of procedure, one more specific is 
snperimposed, effect is to be given to the latter so far as possible 
along with the earlier one, bat, if necessary, in partial supersession 
of it. The general rale is that a repealed Statate cannot be acted 
on after it is repealed, but as provided in s. 6 of the Qeneral 
CHaases Act, I of 1868, all matters that have taken place nnder it 
before its repeal remain valid. But a new order of a Court, not 
ancillary or provisional, but directing a further substantive step 
in fhe esLCcntion of a decree, is a new proceeding which should be 
governed by the law in force when the order is made, and not 
by the law which it repeals. An Act passed to promote some 
public important object, such as the protection of the property of 
the Dekkhan Agriculturists, may be given on that account a 
retroactive operation, if necessary, as the rule against such opera- 
tion, rests itself on such a general public interest which may, under 
the circumstances, bo deemed of less importance than the one 
embodied in the Act.^ 

Change of status ij change in law. 

As already remarked above, change in the law does not generally 
affect any proceeding begun when it comes into force. But a 
change of staixts or legal capacity generally operates at once to 
extinguish, diminish oi- vary the extent to which a party may daim 
the aid or protection of a Court. A man who was earning his 
liveKhood partially by agricuHare within a district to which the 
D. A. R. Act applied, brought a suit for redemption. At the time 
of the institution of the suit, he was an agriculturist as defined by 
8. 4 of Act XXllI of 1881. During the pendency of the suit the 
definition of agricnlturist was changed by s. 3 of Act XXII of 1882. 
Held that, if the plaintiff was not an agriculturist within the mean- 

(1) Shivram Udaram v. Kondiba Muktajl, (1884) 8 Bom., 340 ; (Went 
and Kanabhai^ |j«)i For focts^ see the case noted under i, 22 \ ne^ al^o caa^s 
Qoted under the sftme section. 

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14 d. I. fifllbct of ChiAge 6f SUtUft. 

ing of Act ^Xll of 1882 at the time of adjudication, he had no 
right to redeem on the special terms of s. 12 of Act XVII of 1879, 
as he had lost, penderUe lite^ the specific personal chai'acter on which 
the right depended.^ 

The general rale is that when the law is altered, ponding an 
action, the rights of the parties are decided according to the law as 
it existed when the action was commenced, unless the new statute 
shows a clear intention to vary such rights. In the case cited above 
the change in the definition of an agriculturbt not merely affected 
the jurisdiction of the Courts, which would be a matter of procedure 
but also the rights of the parties.^ So in a case where sometime 
previously to the institution of the suit, the defendants lived and 
carried on business as money-lenders at Yeola, a taluka not subject 
to this Act, and while there^ they became indebted to the plaintiff. 
Subsequently they removed to Kopargaon, in which district this 
Act was in force. Both at Yeola and at Kopargaon, they, in the 
course of their business, acquired land which they cultivated. In 
1882, the plaintiff brought this suit against them in the Subordinate 
Judge's Court at Yeola to recover the debt due to him. The 
defendants contended that they were agriculturists, and could cot 
be sued in the Court at yeola. The suit came on for trial in 
July 1883, at which date Act XXII of 1882 had come into force 
which altered the definition of agriculturist. The defendants 
contended that the definition of agriculturist to be applied in the 
the case was that contained in Act XXIII of 1881, which was in 
force when the suit was instituted, and not that in Act XXII 
of 1882, which was in force at the date of the trial. Held that,, 
having regard to the very special nature of the legislation embodied 
ia s. 12 of this Act for the benefit of a particular and a very 
limited class, it was intended by the legislature that a person 
claiming the benefit of that section at the trial should fill the 
character of an agriculturist as then defined by law.^ 

(1) Padgaya Somshetti v. Baji Babaji, (1887) Jl Bom., 469 (West and 
Birdwood, jj.) ; following Shamlal v. flirachand, (1886) 10 Bom,, 367. 

(3) Shamlal v. Hirachand, (1886) 10 Bom., 367. (Sargent 0. J. & 
Birdwood, jj.). 

(3) Ibid; Padgaya SomBhetti v» Baji Babaji, (1887) II Bofn., 469 (West 
fwd Birdwood, jj.). 



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S. t. effect ot d^Mge of Status* 15 

Change of status by change in facts.— la execution of i 
simple money decree obtained against; the defendant as an agri« 
1 Guitarist, his immoveable property was attached. He applied to have 
the attachment raised onUhe ground that he was an agricnltarbt. 
The Snbjudge found on evidence that he had ceased to be an agri- 
caltarist and rejected the application. The District Judge on appeal 
confirmed this order on 2nd November 1895, holding that no 
appeal lay against the finding^ of the lower Court as to the status 
of the defendant. Held^ that the Sub-Judge had no jurisdiction in 
execution proceedings to reopen the question of the defendant's 
statas as an agriculturist which had been decided in the course of the 
suit. Held also that the Dbtrict Judge was bound on appeal to set 
aside the Sub-Judge's decision, quite irrespective of the terms of 
s. 78 of the Act whioh was in force when the order appealed against 
was passed. Held furthar that as s. 78 had been repealed before the 
appeal was heard its provisions as to finality could not be binding 
on the Appellate Court.^ 

In a suit the Subordinate Judge held that the defendant wai 
an agriculturist and that therefore, the suit could not be maintained 
without a certificate under section 47 of this Act, Under Section 73 
of this Act the finding of the Subordinate Judge upon the point was 
fiu%l. The plaintiflF appealed, the appeal including other points of 
objection to the decree as well as that with regard to the status of the 
defendant. Pending the appeal, Act VI of 1895 was passed ; 
which repealed section 73, At the hearing of the appeal the 
judge considered the question of the status of the defendant, and 
held that he was not an agriculturist, overruling the decision of 
the Subordinate Judge upon this point Held^ that the Judge in 
appeal was right in entertwning the question. Tha provisions 
of Act VI of 1895 altered the procedure and were, therefore, 
applicable to proceedings already couHuencad at the time of their 
enactment. Held^ also, that even if the General Glauses Act 
(I of 1868), section 6, applied to Acts not conferrmg rights, but 
simply concerning judicial procedure, it could not affect the present 



(1) Gyanmal v. Ramchandra, 1896, P. J. 34-3. (Fulton and Hosking JJ.), 
See also Malhar v. Chinto, 1887, P. J,, 38. Mahalingappa v, Nemchand, 1837, 
P, J., 77. See also Hataasi Kalyanji, 2 Bom., 148 and also 16 Oal„ 4'39, 

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case, as iJie repeal was not one of i^e Act itself^ but only of aseotiod 
in the same relating to proceduFe.i 

2. [a] Construction: --In constructing this Act, 
unless there is something repugnant in the subject 
or context, the following rules shall be observed 
namely: — 

Legislative definitions, — or interpretation clauses being 
necessarily of a very general nature not only do not control but 
are controlled by, subsequent and express provisions on the subject- 
matter of the same definition. The principle on which they are 
themselves to be interpreted may become a matter of controversy, 
and the application of them to particular cases may give rise to 
endless doubts.2 

ist. ** Agriculturist,''— Shall be taken to mean 
a person who by himself or by his servants or by his 
tenants earns his livelihood wholly or principally by 
agriculture carried on within the limits of a district 
or part of a district to which this Act may for the time 
being extend, or who ordinarily engages personally in 
agricultural labour within those lipiits. 

Commentary. 

" Agriculturist." — It is indeed very difficult to ascertain the 
precise meaning of this term, as defined by this section. The Select 
Committee in 1882 remarked, '« It would probably be impossible to 
frame a definition which would not go too far one way or the other," 
Difficulties having arisen as to the co^^stpuctipn of the definition of 
agriculturist an attempt was made in the Bill of 1.881 to recast 
S, 75 of this Act, (which gives the Local Government a power 

(1) GaDgaram v. Punamcband, (1896) 31 Bom., 822 (Farran C. J. and 
FultoQ J). 

(2) Per Lord Denman C* J.^ quoied in Uda Begam v. Imam Uddia, 2 all 
at p. 86. cf. the following quotation of Sir F. Dwaris cited in the case :, 
*< Interpretation clauses are by no means to be strictly construed and con. 
yenience seems likely to lead their being practically disregarded." 

(a) This section was substituted for the original s. 2« by Act VI of 1895* 



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S. 2y R. X, Who is an agriculturist ? 17 

io make rales) so as to admit of rules being made, among other 
matters, to define more preoisely what classes of persons should 
be deemed to be agriculturists for the purposes of the Act. The 
attempt, however, failed, probably because it was not thought proper 
that such a vital point in an Act passed by the Supreme Legis- 
lature should be left entirely in the hands of the Local Government. 
The question as to what classes of persons should or should not be 
as agriculturists was also discussed at length in a corres^ 
ience^ between Dr. Pollen and Mr. Hope, the framer of this 
Act; and had the correspondence been published, it is certain 
that it would have thrown much light on the construction 
of the term. 

Analysis : — The definition notes down two diflferent classes of 
persons as coming within its sphere. 

{A) In the first class will come a person, 

(1) who by himself or by hijj servants or tenants 

(2) earns his livelihood 

(3) wholly or principally 

(4) by agriculture, 

(5) which agriculture is carried on within the limits of 
a district to which this Act mAy apply. 

(B) In the second class will come a person who (I) ordinarily 
and (2) personally (3) engages in agricultural labour 
(4) within the limits to which this Act may apply. 

'* Shall be taken to mean a person : "—The word «* person " 
ordinarily includes any company or association or body of 
iadividaals, whether incorporated or not.^ The definition 
may likewise include an institution, such as a Devasthan, School 
or Dispensary which is being maintained with the income derived 
from agricultural sources attached to it. 



(1) So far as wc are able to ascertain it, this correspondence has not 
Wn published and we simply find a reference to it in the Proceedinga 
of the Governor-Gcneral'd Council for 181)5, Vol. XXXIV, p. 170. 

(•2) See S. 3, Sub-S. 39 of Act X of 1897, (General Clausea Act^ 



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IS S. 2, R. Z) Who is an asrricuiturist > 

" Who by himself or by his servants or by his tenants:'* 
»— The words servants or tenants may ia particular oases include 
relatives, friends, or even strangers. In practice we often find that 
a Joint Hindu family owns large fields and is almost entirely 
maiutaiued by agriculture carried on by its manager. We also meet 
here and there with a case where a man is himself unable to carry 
on his agricultural business for some reason or other, and the 
business is, therefore, carried on for him by his friends. Neither the 
manager in the first case, nor the friend in the second case, can 
strictly be called a tenant or servant. And a question may, therefore 
be asked : can the person for whom the management is undertaken 
be said to be an agriculturist ? A reply in the affirmative will not 
be incorrect. 

" Earns his livelihood ":— It is difficult to ascertain the 
particular significance of this phrase in tha definition. This Act is 
evidently intended for the relief of agriculturist-debtors ; there would 
thus seem to be no meaning in including in this definition persons 
who amass great wealth as well from agriculture as from trade or 
other profession. Viewed in this light, an agriculturist would, it 
seems, be a person whose income from non-agricultural sources is so 
small that it is not sufficient for his maintenance. But in a case where 
the plaintiff, an owner of inam villages, the revenue from which to- 
gether with his income from other sources not agricultural, was greatly 
in excess of the income ho derived from agriculture, mortgaged the 
inam villages, and thereby reduced the income actually received by 
him from non-agricultural sources to less than the income he derived 
from agriculture, held that although his income from the inam 
villages and from other sources not agricultural might together be 
sufficient for his maintenance, nevertheless the construction of 
the definition of agriculturist given in the Act which ig quite 
independent of any such question, could not be affected thereby, and 
that he must be deemed to ''earn the means of his livelihood'^ 
principally from agriculture, and to be an agriculturist within the 
meaning of the Act.^ 



(1) Dwarkojirao Baburao v» Bilcrishna Bhalcbandra, (1894) 10 Bom., 
85o, (Sargent, C.J. aud Candy, J*). The Italics are ours. 



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S. 2, R. 1, Who is an ag;riculturist ? 19 

For a better understaoding of the case we give the facts and cite 
the fall judgment of Sargent, 0. J., as under : — 

The first plaiiiliif received from the Kolhrpur state a 'monthly 
pension of R^. 33 and his mother Hs. 10, the yearly income 
from that sourc3 being Hs. 6*34. The pUintiff*s mother alio 
received from another source a sum of lU. 6 per mensem being 
a yearly income of lis. 7*3. The plaintiffs were also owners of 
certain villages the revenue of which was considerable ; but 
owing to mortgages on them they only yielded to the plaintiff* 
a 8um of Us, 333 per mensem. The lower court held that they 
did not earn their livelihood principally from agriculture, their 
income from sources other than agriculture being in excess of 
the income derived from that source. The High Court held 
*^ The expression earns his livelihood can only mean obiains the 
means of maintaining himself. At the present moment the 
inam villages, owing to the mortgage on them, only contribute 
Rs. 333 per annum towards the plaintiff's maintenance, tliat 
being the only sum which comes into their hands from that 
source. Therefore, even if the whole pension from the Kolhapur 
Si ate were added to it, still the means of providing for the 
plaintiff's livelihood would be leas than that derived from agri- 
culture ; and, therefore, under those circumstances we think 
they must be deemed at tha time of bringiog the suit to obtain 
or, in other words, " earn the means of livelihood " principally 
from agriculture. The fact that the 333, 624 and 72 lU. might 
together be suf^cient for the plaintiff's maintenance, cannot, 
in our opinion, affect the construction of the definition of 
" agriculturist " which is quite independent of any such 
question."* 

It will be noted that the definition, as it goes, leaves the point, 
whether earning one's livelihood will include what is needed for 
the maintenance of his family, open and undefined. This diflSoulty 
would not, however, arise if the status of an agriculturist is deter- 
mined by comparing his income from agriculture with that from 
other sources (if any), and by finding if his income from agriculture 
is greater, 

" Wholly or principally": — ^The word principally has been 
substituted for the word partially which stood in the clause before 
the passing of Act XXII of 1882. The change in the word 

* TUe Italics are ours. 

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20 S. 2» R. x» Who is Hn Agriculturist } 

led to importaat resnlts aud contributed to the passing of a 
few importaat ralings whioh have been already given in a 
preceding note^. 

What ar^ a man's principle earnmgs for the purposes of 
this definition wUl have to be decided according to the facts 
of each case* Bo in the case where a member of a Joint Hindu 
family earns by service or trade (which is his individual concern) 
more than what may fall to his share if the family income 
from agriculture be divided, the question of deciding whether 
he is an agriculturist or not will be very much nice for 
determination. 

" By agriculture": — The term agriculture is not defined, 
However, as explained in the English Dictionaries, it ordinarily means, 
the art or science of cultivation of the ground, especially, with 
the plough, in fields or in large quantities, including the prepara- 
tion of the soil, the planting of seeds, the raising and harvesting of 
crops. It may also include the rearing, feeding and management of 
livestock.^ 

In The Board of Agriculture Act' " agriculture '' is said 
to include « horticulture " (s. 12). In The Small Holdings Act,* 
•'agriculture" and "cultivation" are said to include horticulture 
and the use of land for purpose of husbandry, inclusive of the 
keeping or breeding of livestock, poultry, or bees, and the growth 
of fruit, vegetables and the like* (s. 20).^ It is doubtful, how- 
ever, if this definition can be followed here in all its details. A 
person who owns salt-works and manufactures salt will not be 
an agriculturist. Agricultural produce will generally include 
vegetables, cotton, grain, grass, fruits and flowers. But it is 
difficult to say whether it would include these productions after 
they change their natural form by any process or improvement 



(1) Vide the heading :— Change of law pendente UtCy on jv 13, 

(2) See the term defined in Webster and Annandale, 

(3) (1889), 53 k 53 V. C. 30. 

(4) (1893), 55 & 56 V. C. 31. 

(5) Btroud'fl Judicial Dictionary, 



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S. 2, R. x» Who is an a^icuHurist ? 21 

-made npon them; e, g. ginned ooiton, or spindles of thread, 
flour of grain, grass mattresses, sugar, or preserve of fruit, and 
flower garlands or flower soents will not be called agrionltoral 
produce. This question would arise in determining the income 
of the person who prepares or manufactures any of these things 
by working upon any kind of agrcuJtural produce got by him 
by agriculture carried on by himself. 

" Carried on within the limits ": — So if a person, resi- 
ding at Foona, carries on agriculture wholly or principally at 
places where the Act does not extend, he will not come under 
this definition* 

" To which this Act may for the time being extend ":— 
The whole of ihis Act is extended to the four specified districts only. 
But some provisions of the Act apply to other^distriots ; while some 
apply to the whole of British India. If the words '* this Act" were to 
be construed as including any portion of the Act, then an agriculturist 
residing at Calcutta to which a portion of the Act is extended, will 
come under the definition, which is evidently absurd. If, on the other 
hand, the words " this Act " were to mean the whole of it, then 
a person carrying on agriculture at any place in the Bombay 
Presidency (oxcludicg of course the four district?, in which the Act 
has a full operation) would not fall under this section even if 
a portion of the Act were extended to it ; so construe the words this 
Act in either way, the absurdity is inevitable. 

Here it may he noted, that when the first extension under this Act 
(s. 20) was made by the Local Government in 1902, the Government 
were careful to extend s. 2 also. It cannot be supposed that s. 2 was 
extended simply to explain the meaning of the word agriculturist 
appearing in s. 20 ; because we see that the Legislature in passing 
Act XVII of 1879 did not extend this defining section along with 
ss. 11 and 56 to the whole of British India to explain the word 
agticulturbt appearing in those sections. In determining, there- 
fore, whether tids Act is to be deemed to have been extended to 
any particular place for the purposes of this defining section, it 
seems, it will have to be considered, whether this defining section 
itself is extended to that place* 



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22 S. 2, R. X, Who is an agriculturist ? 

It was, however, held in a case^ that the operation of s. 2 
is within the Aot itself and there alone, being snch that wherever 
the word agrionltarist oocnrs the definition given may be sub- 
stitnied for it. The sections in whioh this word is used 
have a wider or narrower local operation; the defining section 
determines only in what sense they are to be understood apart 
from the notion of locality. It follows that the word agri- 
culturist in s. 11 means one according to the definition in s. 2 
although the latter section is not declared to extend to the whole 
of British India. 

Thb was a case decided under the section as it stood before 
the Amending Act of 1895 was passed. The wording of the old 
section on this point was clear enough ; the case can thus throw 
no light upon the present question. Under these circumstances, 
it seems, we must conclude that an agriculturist, in order to 
fall under this definition, must be carrying on his business at a 
place where this section applies.^ 

^' Or wiio ordinarily engages personally in agricultural 
labour": — This provision is independent of the provision that pre- 
cedes it. So a man who ordinarily engages personally in agricultural 
labour will be considered an agriculturist irrespective of the 
consideration whether he earns his livelihood principally from 
agriculture or not. Here too, it is not clear how to determine 
the status of those who are by reason of close relationship or other 
wise solely dependent upon such a person for their support and 
maintenance. 

There is nothing in the definition which requires that a man in 
order to come under this definition must cultivate his own land or 
must own any land at all. The class of people, contemplated by the 
last words of the clause,, seems to ioclude persons who are labourers, 
servants or tenants. In the case of a servant, his master may, at his 
option, engage him in agricultural labour at one time, and in 

(1) Tulsidat V. Virbasapa, (1880) 4 Bom., 624, (West J,). See also Puru- 
thottam y. Bhavanji, (1880) 4 Bom., 360, post. 

(2) or where any prorition of this Act, other than lectiont 1, 11, 
56, 60| and 62, is made applicable. 



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S. 2, R. I, Explanation (a) and (b). 2i 

non-agricultural labour at another. In suoh a case the Court 
concerned will have to see whether the person is ordinarily 
engaged in agricultural labour within the specified limits. The word 
ordinarily as used here is most significant. In the absence cf the 
word, one could have conveniently kept aside his usual avocations 
for a time and temporarily assumed the character of an agriculturist 
for the purposes of the Act. So in a case where the defendants 
were, within a few months of the institution of the suit, acting as 
traders, it was held that a man must have gained his livelihood by 
farming for at least one full agricultural season to have acquired 
the condition of an agriculturist under the Act. The status of 
agriculturist and of trader is not to be taken up and laid momen- 
tarily aside in order to embarass a Creditor.^ 

Explanation (a) : — An agriculturist who, without 
any intention of changing his status as such, temporarily 
ceases to earn his livelihood by agriculture or to engage 
personally in agricultural labour as aforesaid, or who 
is prevented from so earning his livelihood or engaging 
in agriculture by age or bodily infirmity or by necessary 
absence in the Military service of Her Majesty, does 
not thereby cease to be an agriculturist within this 
difinition. 

Commentary. 

A man, who is not an agriculturist at a time when his 
status as an agriculturist comes iuto question, will neverthe- 
less be deemed to be an agriculturist under this explanation 
in two cases : (a) where he, being an agriculturist, ceases to be so 
only for a short time ; (b) where he, being ordinarily an agri- 
culturist, is prevented from continuing to be so by reason of age, 
bodily infirmity &c. 

(b) An assignee of Government assessment or a 
mortgagee is not as such an agriculturist within this 
definition. 

» ' ■■ ^ « ■ 1 . 1 I, ■ 1 1 »" • -■■ ■ ■ ■■■ " ■ — ' ■ " ■ ■* 

(1) Tuliidai Dhunji v. Virbasaps, (1880) 4 Bou)., 6>4 (West J.). 

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^4 S. if Rules 2 and 3. 

Commentary. 

" A mortgagee is not as such an agriculturist ": — ^The 
word "mortgagee" seems to include a mortgagee with possession. 
If, however, any person irrespective of bis position as a mortgagee falls 
within the definition, or if even as a possessory-mortgagee he 
ordinarily engages personally in agricultural labour as aforesaid, 
he would, it is clear, come under the definition. 

2nd.— In Chapters II, III, IV and VI, and in 
Section 69, the term ' 'Agriculturist," when used with 
reference to any suit or proceeding, shall include a 
person who, when any part of the liability which forms 
the subject of that suit or proceeding was incurred, 
was an agriculturist within the meaning of that word 
as then defined by law. 

3rd. — An agriculturist shall be deemed to reside 
where he earns his livelihood by agriculture or per- 
sonally engages in agricultural labour as aforesaid. 

The term agriculturist : — Before the amendment of 1895, 
the term had reference to an agriculturist residing within any of 
the four districts only and not to one residing in any other 
district.^ The word would now seem to refer to an agriculturist 
residing in any part of the Bombay Presidency except Aden and 
the city of Bombay. 

" Proceeding."— This word^ ordinarily includes all proceedings 
in any suit from the date of its institution upto the date of 
its disposal, including proceedings in appeal or in execution, 

" Shall include a person":— The D. A. U. Act, as amended 
by Act XXII of 1882, applies as well to persons who were 



(1) Puruahottam Lalbhai v. Bhavanji Partab, (1880) 4 Bom., 360, 
(Westropp C. J., and Melvill j.) ; see the case referred to under 8. 11. 

(2) for the meauiug of ihis word, see 15 Gal., 107 ; 3 Cal., 622 (F. B.) • 
6 B. H, C. 166 ; 15 CaJ., 357 ; aUo 16 Oal, 267 (F. B. ). ' 



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^. 2, Old Law. 25 

agrioultarists when the liability in the salt was incnrred, as to 
those who were so when the suit was institntod.* 

As then defined by law : — If a man when he incurred his 
liability was not an agriculturist within the meaning of that word 
as then defined by law, because the Act did not then es^tend to the 
place where he carried oa his agriculture, he will not probably 
come under this rule if it is strictly construed. The definition of the 
term agriculturist has undergone some important changes, as will be 
clear from the following :— 

Old Law. 

Act XVII of 1879 enacted :— 

*' Agriculturist " meaDB a person who earns his livelihood wholly 
or principally hy agriculture carried on within the limits of 
the said districts ;* and ey.evy agriculturist shall be deemed 
to reside where he so earns his livelihood. 

Act ZXIII of 1881 enaoted :— 

'^ Agriculturist *' means a person who, when or after incurring any 
liability, the subject of any proceeding under the Act, by 
himself, his servants or tenants, earned or earns his livelihood, 
\r holly or partially by agriculture carried on ^tithin the 
limits of the said districts. A cultivator who has tempbrarily 
ceased to earn his livelihood in manner aforesaid, without any 
intention of changing his status as such, does not thereby 
cease to be an agriculturist within this definition. An ass^ignee 
of Government assessment, or a mortgagee is not as such an 
agriculturist within this definition. 

Act XXII of 1882 enacted :— 

1st— "Agriculturist^' shall be taken to mean a person who by 
himself, his servants or tenants, earns his livelihood wholly or 
priucipally by agriculture carried on within the limits of the 
said* districts, or who ordinarily engages personally in agri* 
cultural labour within those limits. 

Explanation,— {a) An agriculturist who, without any intention 
of changing his status as such, temporarily ceases to earn hi^ 
livelihood or to engage personally in agricultural labour as 
aforesaid, does not thereby cease to be an agriculturist within 
this definitioti. 



(1) Banu V. Krishnambhat, 1886 P, J.159. (Sargent, C, J. and Birdwood, J.). 
* rooua,Sataro, Ahmednagar and Sholapur, 

i 

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26 S. 2, Chafage of Status. 

{b) An aAsignee of Government asseBement or a mortgagee la not 
as Bnch an agrioalturist within this definition, 

Cnd. In Cbaptera II, III, IV, and VI, and in s. 69, the term agri. 
cultnrist when used with reference to any sait or proceeding 
shall be deemed to include also a person who, when any 
HabiUty incurred by him and forming the subject or part of the 
subject of that suit or proceeding was so incurred, was an 
agriculturist as defined in the first rule. 

Change of status at different stages* 

A party may be an agrioulfcurist only 
(a) when the liability was incurred but not afterwards, 
(li) when the cause of action arose „ „ 

(c) when the suit was instituted „ „ 
A party may become an agriculturist, 

(d) at any of the above stages but not before, 

(e) at the hearing of the suit „ 
(/) when the darkhast was filed „ 

{g) in course of the execution-proceedings but not before. 
In all these cases different considerations would arise as shown 
below : — 

(a) He will be deemed to be an agriculturist only in refer- 
ence to suits or proceedings tinder chapters II, III, IV and VI 
or under s. 69, (vide s. 2, rule 2nd). 

(b) He will be considered an agriculturist only for the purposes 
of limitation under s. 72.^ 

(c) If a party loses his personal character pending the suit, 
he must lose the benefit thereof. This rule may, however, sometimes 
be found hard in practice. When the preliminary point of status 
is once determined, the Court will be disinclined to allow it to be 
reopened now and then. There is no direct authority tinder 
the Act on the point. The only cases which approach this question 
deal specifically with the change of status as constituted by a change 
of law pendente lite and not with change oi status de facto irrespective 
of any change of law. Although the Court is bound to take notice 
of a change in law pending suit, still it may be argued the court 
is not equally bound to take notice of any change of stcUus 

. (1) A person falling un()er this class may in certain cases fall under 
class (a) also. 



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3. i, Change of Status 27 

(brought aboat by ohange ia his personal oircamstances) of a 
party in course of the suit after it has once come to. any determin- 
ation on the point. Otherwise this plea of change of status might 
be raised at every hearing, and adjournments asked for to produce 
fresh evidence to prove the change till the day on which the judgment 
is to be given. However this may be, the principle enunciated 
by the reported cases is general and according to it a change of 
status would deprive the party, who was, an agriculturist when the suit 
was instituted, of the benefits attached to such status, and he will 
not be considered an agriculturist when the decree is to be passed.^ 

(d) If a party becomes in fact a bona fide agriculturist at any 
of the stages a, b or c, he will reap the advantages to which he may 
be entitled under the Act although he was never an agriculturist 
before. The dictum^^ that a man must have gained his livelihood 
by farming for at least one full agricultural season to have acquired 
the condition of an agriculturist, is not, it is submitted, to be taken 
as laying down any bard and fast rule of universal application. 

(e) It is difficult to see how an acquisition by a party of the 
status of an agriculturist at the hearing is to aftect proceedings 
already begun ; and if such an acquisition creates any rights in 
favoHr of the party it is equally difficult to say how those rights 
are to be enforced. To take a concrete instance, if a party to a 
suit acquires the status of an agriculturist on the last day of 
hearing, various doubts would arise asto how the law is to be 
applied to such a case. But it may be argued that if a party has to 
lose his vested rights if he loses his status peadiag a suit, why should 
he not acquire new rights which did not originally belong to him 
by the acquisition of the status of an agriculturist in course of the 
suit That he should so acquire the rights seems to be in consonance 
with the rulings of our High Court. So in a case where the 
plaintiif was an agriculturist at the time the suit came on for 
hearing, held that there was no objection to the suit being heard and 
determined under the Act.' Moreover, in the case noted below,* 

(1) See the remarks of West j. in Padgaya Sorashetti y. Baji, (1887) 
11 Bom., 469. Compare also Rule 2nd, s. 2. 

(2) TulsiddS Dhunji v. Virbasapa, (1880) 4 Bom., 624, (West J.). 

(3) Kondi ?. Guiida, 1882 P. J. 156. (Melvill and Nanabhai, JJ.). 

(4) Padgaya v. Baji, (1887) 11 Bom., 469.; of. also Rambhat y* 
La^uman, 5 Bom,, 630, 



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2S S. 2| Change of Status, 

West J. remarked that : — " It would be hard to say that a mau 
suing as son of A* B* could contiuue the suit in that character after 
his adoption by 0» D ; and as a right may be lost so it may be 
gained pendente lite by the acquisition of a particular status with 
reference to the object of the suit." 

(/ 4* ^) K a party becomes an agriculturist at the time the 
application for execution is presented or if he becomes an agri- 
culturist during the course of execution-proceedings the case 
becomes analogous to {d) & (e) and the remarks therein would 
equally apply. 

Before s. 73 was repealed, the law did not allow the reopening 
of the question of the status of an agriculturist in execution- 
proceedings* But as the section is no longer law, the rulings,^ 
under that section would not of course affect the consideration 
of the question. It is again to be noted that a party may not be 
earning his livelihood by agriculture or engaging in agricultural 
labour at any of the stages (a) to (ff) and yet he will be considered 
an agricnlturist for the purposes of the Act, if he falls under 
explanation (a). 

The privileges of an agriculturist are personal^:— 

An assigjQment by an agriculturist mortgagor of his equity 
of redemption to a non-agriculturist will not confer on the latter 
the personal privileges of the former under this Act. But 
the assignee of an agriculturist mortgagor being himself an agri- 
culturist is entitled to the benefit of ss. 12 to 14.3 Moreover, 
it seems, an agriculturist assignee would reap the benefit of the Act, 
even though his assignor was a non-agriculturist ; (Quare). 



(1) Compare cases in 1896, P. J. 342, 1887 P. J. 38, 1887 P. J. 77. 

■ (3) Rajaram v. Laksliman 1882 P. J. 424 (Sargent, C. J. and Nana- 
bhai, J.)- Clf: Amichand v. Kanu, 1884, P. J. 203, and Dnjanu v. Appa, 
1893, P. J. 271, cited under 8. 12 infra. 

Compare also Mahalau. v. Kusaji, (1893) 18 Bom., 739, where the plaintiff 
was considered an agriculturist because her husband and son were so. 

(3) Dnyanu v. Appa, 1893 P. J. 271. (Weflt and Nanabhai, JJ.), Vide 
also Shripat v. Sitaram, 1887, P. J. 296, and Anaji Waghuji v. Bapuchand 
^etWram, (1883) 7 Bom., 520 cited u«der S. 3 sub-clftUde (z). 



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S.2, The privileges of an agriculturist. 29 

However an assignmeni; of the above nature will evidently 
be watohed with great scrutiny;^ and where the Cbnrt is not satis- 
fied as to the bona fides of the assignment, it will, it seems, go behind 
it, and proceed widi the suit as if the assignee was a non-agrioultorist. 

Where a purchasB is made henami and a Fuit is brought by 
the benamidar in order that the real purchaser may escape the 
consequence to which he would be liable if he purchased 
and sold in hb own name, the Court will look behind the record 
to see who the real purcharser is« A benamidar may maintain a 
suit in his own name, but the Court will pat the defendant in the 
same position as if the real were the actual plaintiff. 

One Dagdu, an agriculturist, purchased certain land henami 
for Kelkar a non-agriculturist, and brought a suit for redemption 
tinder the provisions of the D. A. R. Act. Under the notification 
of the Government of India, No. 2092, dated the 29th July, 
1881, the fees in case of suits by agriculturist for redemption were 
remitted, and the plaintiff*, therefore, paid no stamp duty on the 
plaint. Held that Dagdu might maintain the suit in his own 
name, but must pay the usual stamp fees, and that the suit should 
proceed as an ordinary suit as though Kelkar was the nominal as 
well as the real plaintiff.^ 

In a suit for redemption by the assignee of an agriculturist 
mortgagor the District Judge dismissed the plaintiff's suit on the 
ground that the assignment was not made bona fide ^ as he consider- 
ed the admitted consideratioi^ to be inadequate, held that the issue 
did not properly arise in the Suit against the mortgagee.^ 

Sometimes others can share the benefit of the pri- 
vilege : — ^The owner of part of the equity of redemption has a right 
to redeem the whole of the mortgaged property on paying the whole 
of the mortgage-debt, and where he does so on the terms of this 
Act, the other sharers in the equity of redemption, though not ngri- 
culturists, are entitled to get the benefit thereof.* 

(1) But eee Tukaram v. Bahirao, 1888 P. J., 7. cited post. 

(2) Dagdu V. Bakant R. Natu, (1897)22 Bom., 830 (Farran, C. J.,and 
Candy, J.). 

(3) Tukaram v. Ba)iirao, 1888, P. J.> 7. (Birdwood and Parsons J J.). 

(4) Gulabpuri v. Pandurang, 188C P. J. 142, (West and Nanabhai, JJ.) : 
referred to in 2% Bom., 820. 



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30 S. 2, The rights, and liabilities under the Act. 

So also in the oase nofced beJow the Court remarked that & 
noa-agrioulturiat plaintiff might nailer certain circnmstances reap 
a considerable portion of the advantage derived from the suit, a 
result which the D. A. B. Act contemplates in some instances.^ 

Whether an agriculturist is bound to follow the pro- 
cedure laid down by this Act : — When a provision is intended 
for the benefit of a particular class of persons one would naturally 
think, it is at the option of a person of such class to claim the benefit 
of the provision. This Act is, however, so framed that in some oases 
the agriculturbt, if he once becomes a party to any suit or proceeding 
falling under this Act, is not allowed an option to see whether the pro- 
visions of the Act should or should not be applied to the suit or 
proceeding. The duty imposed upon the Court by the Act is imperat- 
ive ; and it is not at the invitation of any party to a cause that the 
Court has to perform that duty. The duty of the Court is imperative, 
80 . mnch so that according to the 4th para» of s. 12 even when 
the amount of the claim is admitted, the Court has to satisfy itself 
that the admission is genuine.^ So also in cases where the 
agriculturist party is the sowkar, or creditor of a non-agriculturist 
debtor, he may not be interested in submitting to the procedure of 
Conciliation and the like ; and yet, as Chapter VI stands, the 
provisions would apply, and would thus go to serve the cause of a 
non-agriculturist even to the detriment of the agriculturist p^rby. 
Sometimes an indebted agriculturist may be interested in posing 
himself as non-agriculturist, for instance in order to plead the bar 
of limitation. But the Act would apply to him if the other party 
alleges and proves that he (the debtor) is really an agriculturist. 
So when a matter in dispute becomes the subject of any suit or 
proceeding under the Act, it being not the agriculturist but the 
Court that has to apply the law to the facts of the case, the option 
of the former will not affect the jurisdiction of the latter. But out 
of Court, of course, the parties will, it seems, be at liberty to finally 
settle their claims in any way they like, and in thus settling they are 



(1) S. 3 Clauses (y) and (z) ss. 12 and 13, and Chapter VI may be cited 
as such instances. Dagdu v. Balvant, (1897) 23 Bom., 820. (Farran, C. J., 
and Candy, J.). 

(2) See the remarks of Chandavarkar J» in Patlu v. Naru, (1905) 
7 Bom, L. R., 088, 



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S.2, The plea of Status. 31 

act booad by any of the provisions of the Acl.^ Thus iii a case 
a childless Hindu widow, having succeeded to the estate of her 
father-in-law, sold a portion of it in order to pay off his debts. The 
estate was situate in a district in the Presidency of Bombay subject 
to the D. A. R. Act. The plaintiff, as reversioner, sued for a decla- 
ration that the sale was void beyond the life-time of the widow. 
Both the lower Courts made the declaration prayed for by the 
plaintiff, on the ground that there was no necessity for the sale, as the 
widow might have availed herself of the provisions of the D. A. ]{. 
Act. On appeal by the defendant to the High Court, held^ reversing 
the Lower Court's decree, that the sale by the widow should be 
upheld, that she was not bound to avail herself of the relief afforded 
by the D, A. R. Act any more than the provisions of the limitation, 
and that the moral obligation, which rested upon her, to pay the debt 
of her father-in-law justified the sale.^ 

The plea of Status :— The Court must enquire fully intaan 
allegation by the defendant in a suit brought by an alleged ftgri- 
oulturist, that the plaintiff is not an agriculturist, and if it refuses to 
do so, the High Court will interfere under its extraordinary juris- 
diction.* This plea can be raised by any of the parties to the suit. 
Quare — can it bo raised for the first time in appeal ?* 

Where in a previous suit, defendant had raised the question of 
status as agriculturist and the case was decided and in a later suit 
he pleaded the same status, held that the matter in issue in the two 
suits was not the same within the meaning of s. 13 of the Civil 
P. Code. In the first suit the question was whether the defendant 
was an agriculturist at the date of the suit, the question now is 
whether he is so at the date of this suit ; during the interval the 
status may have changed*^ 



(1) Cf. Mohan v. Tukaram, (1895) 21 Bom., 63. (Farran, C. J. and 
Parsons, J.). 

(2) Bhaoo Babaji v. Gopala Mahipati, (1886) 11 Bora., 325 (Sargenf, C. J. 
and Nanubhai, J.) in this case, it seems, the sale was made in satisfaction of a 
previous mortga^^e ; and if accounts would have been taken under this Act 
the sale would have been unnecessary. The ^acts are not very clean 

(3) Haii V. Sitaram, 1882, P. J., 15 (Mel 7ill and Kemball, JJ.) c/. Jivail 
v. Kaka, 1883 P. J, 9. 

(4) See Janardan v. Ananta, 1896 P. J. 396. under s. 10. 

(5) VisUwanath Garud v. Bata bin Tukaram, 1889 P. J. Ul\ 



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32 S. 2, Rules 4> <^> And S« 2A 

Not Barred by Admission :-^The tnero fact that the d^ 
fendant described himself ia the instrameat oa which the suit was 
brought as a trader would not, of itself, estop him from pleading at 
the trial that he was an agriculturist and entitled to the protection 
of this Act. There must be evidence to show that, by describing 
himself as a trader, he represented himself as a trader, and intended 
that that representation should be acted on by the plaintiff.^ 

4tli. ^' Money '' shall be deemed to include agri- 
cultural produce, implements and stock. 

5tli. ^' Lease" shall be deemed to include a 
counterpart, Kabuliyat, an undertaking to cultivate or 
occupy, and an agreement to lease. 

6th. '^ Standing crops " shall include crops of all 
sorts attached to the soil, and leaves, flowers, and fruits 
upon, and juice in, trees and shrubs. 

[a] 2 A. Jagirdars, &c., to be deemed 
Subordinate Judges :— Every jagirdar and other 
authority invested with powers under Bombay Regu- 
lation XIII of 1830 and Act XV of 1840 shall, for the 
purposes of this Act, be deemed to be a Subordinate 
Judge of such class as the Local Government may 
from time to time direct. 

(1) Kadappaa; v. Martanda, (1892) 17 Bom., 227. (Sargont, 0. J. and 
Bird wood J.). See s. 115, Indian Evidence Act. 

(a) Section 2 A was inserted by Act XXII of 1882, s. 4. 



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^5 

CHAPTEE IL 

On the Hearing of certain Suits by 
Subordinate Judges. 



3. Application of this Chapter:— The provisions 
of this chapter shall apply to: — 

{a) Suits for an account, \f\ whatever be the 
amount or value of the subject matter thereof, \f\ 
instituted [^] by an agriculturist in the Court of a 
Subordinate Judge under the provisions hereinafter 
contained, and 

{b) Suits of the descriptions next hereinafter 
mentioned, \f\ 

(1) when such suits are heard, by Subordinate 

Judges of the first class and the subject- 
matter thereof does not exceed in amount or 
value five hundred rupees, or 

(2) when such suits are heard by Subordinate 

Judges of the second class and the subject- 
matter thereof does not exceed in amount 
or value one hundred rupees, or 

(3) when such suits are heard by Subordinate 

Judges of the second class and the subject- 
mattert thereof exceeds one hundred rupees, 
but does not exceed five hundred rupees, in 
amount or value, and the parties to the suits 
agree that such provisions shall apply thereto. 

(a— a) These words were inserted by Act XXII of 1882, fl. 5. 
(b) & (c) Wordi repealed by Act XVI of 1896 are omittecU 
6 

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34 Chapter 11, S. 3. 

The descriptions of suits referred to in clause (b) 
are the following, namely: — 

(w) suits for the recovery of money alleged to 
be due to the plaintiff — 

on account of money lent or advanced to, 
or paid for, the defendant, or 

as the price of goods sold, or 

on an account stated between the plaintiff 
and defendant, or 

on a written or unwritten engagement 
for the payment of money not herein- 
before provided for ; 

(x) suits for recovery of money due on contracts 
other than the above and suits for rent or 
♦ for moveable property, or for the value of 

such property, or for damages ; and 

(y) suits for foreclosure or for the possession of 
mortgaged property, or for sale of such 
property, or for foreclosure and H sale, 
when the defendant, or any one of tbe 
defendants, p] is an agriculturist; and 

(z) suits for the redemption of mortgaged 
property when the plaintiff, or, where there 
are several plaintiffs, any one of the 
plaintiffs, is an agriculturist. 

Old Law. 

TPhe words from clause (a) repealed by Act XVI of 1895 are: — 

(a) " And " was aubstituted for « or »» by Act XXIII of 1886, s. 5, 

(b) The words repealed by Act XXIU of 1881 are omitted. 



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Chapter H, S. 3. Application. 35 

** on or after the first day of November, 1879 •" 
Tbe words from clause (b) repealed by Act XVI of 1895 are:— 
^' and instituted on or after tbe same date." 

The words from clause (?/) repealed by Aofc XXIII of 
1881 are :— 

" not being merely a surety for the principal debtor," 

JV.B. — Foot-notes to the section itself will indicate the insertions 
and substitutions. 

Commentary- 
Application of this Chapter :— This Chapter, in respect of 
some of its prorbions, is not limited in its application to suits brought 
by or against agriculturists only. Clauses (w) and (x) of s. 3 apply 
to saits between parties whether agriculturists or not ;^ and even 
clauses (y) and (z) will apply to non-agriculturist parties when they 
are joined in suits with agriculturists. 

Except suits for account, this Chapter is limited in its application 
to suits for sums not exceeding Es. 500 or 100 according to the 
class of the Court in which the suit is instituted. This Chapter 
applies to suits before Subordinate Judges only ; and so it has been 
held that s. 3 has no application to cases heard by Assistant 
Judges.^ The application of this Chapter is restricted to suits falling 
under s. 3 only.^ 

For remissions of Court-fees and process-fees in suits under this 
Chapter, see notifications * on the subject in Part II of this book. 

Clause (a)—" Under the provisions hereinafter contain- 
ed": — ^These words seem to refer to ss. 15D. and 16, because there are 
no other sections in this Act which relate to suits for account. If suits 

(1) Ganesh Krishnaji v. Krishoaji, (1889) 14 Bom., 387, (Scott and 
Candy, J J.) ; see also 4 Bom., at p. 628. 

(2) Mahadji v. Ramchandra, 1885 ?. J. 159, (Sargent, C. J. and 
Birdwood, J.). 

(3) Vide the first para of s. 3. 

(4) For reference to these notifications see p, 5^ ant^^ 



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36 Chapter 11, S. 3. Pecuniary Jurisdiction. 

under ss. 15D. and 16 will thus be governed by this Chapter, it will 
follow that bj virtue of s. 10 no appeal will lie from decrees or 
orders passed in such suits so far as they deolare the account 
between the parties concerned. But it is clear that when in the 
same suits decrees for redemption or for payment by instalments 
are passed under sections 15D and 17, such decrees will not be 
affected by s. 10. 

CL (b). The pecuniary jurisdiction:-^l. (a)givesSubJudge6 
power to try suits for accounts, irrespective of their amount or value, 
under this Act ; while cl. (6) restricts the application of this Chapter^ 
to suits not exceeding Bs. 500 at the most, tried by Subordinate 
Judges competent under sub-clauses 1 to 3 of the same. So when 
the valuation of a suit es^ceeds the jurisdiction of the Court as given 
by this clause the effect will be that the provisions of this Ghs^ter 
will not apply to it. Particularly with respect to suits falling 
under sub-clause (to), a Court may be ousted of its jurisdiction 
under this Chapter in two ways ; 1st, when the valuation of the 
suit as instituted in a Sub-Jadge's Court exceeds the pecuniary 
limits given in clause {h). In this case the suit will have to be 
" tried as falling under the ordinary jurisdiction of the Couit ; 2ndly, 
when the amount or value of the subject-matter does not exceed 
Bs. 10 the suit will generally be tried by the Village Munsif 
[if any such has been appointed under the provisions of this 
Act.] 

Under sub-clause 3, the Court derives jurisdiction by reason 
of consent of parties. The section does not say in what form the 
consent is to be taken. In practice it is generally taken in the 
form of a purshis^ and not orally. If a party or his pleader 
once gives such consent, it can not be withdrawn after the 
hearing has begun, and the suit has proceeded on the footing 
of such consent.^ The sub-clause is so worded that there is 
room to believe that the consent will not be assumed from mere 

(1) See Tulsidaa v. Virbasapa, (1880) 4 Bom., 624. (West J.). 

(2) Cf. s. 20, Presidency Small Cause Courts Act. 

(3) Rupchand v. BaVant Jsfarayan, (1887) 11 Bom., 5^1 (Went <md 
Birdwood, JJ.). 



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Chapter 11, S. 3. Pecuniary Jurisdiction. 37 

acquiescence. When the parties do not agree thai the providons 
of Chapter II shonld apply to the case, an appeal would lie from the 
decision of the Sub-Judge.^ 

Jurisdiction assumed through honest misinformation 
as to value : — An implication of Chapter XI of the D. A. B. Act by 
a Sabordinate Judge, which would have been illegal and wrong if 
the Subordinate Judge had known that the subject-matler of the suit 
was of greater value than Bs. 100, may be sustained if he was led into 
applying it by honest misinformation. The original proceeding being 
thus justified, a Special Judge has jurisdiction to revise it, and, if 
necessary, to order a new trial. Where jurisdiction depends upon 
particular facts stated, the proceeding will not be null through a 
mere error in stating facts so as to found the jurisdiction, though 
they will be voided probably by fraud or at any rate will be 
voidable against him who has practised it? 

The valuation of a suit for redemption :— It may be 

a question whether the valuation of a suit for jurisdictional 
purposes ought to be governed by any rules of an arbitrary kind 
for regulating Court-fees and the like. The Court Fees Act 
no doubt says that in a suit for redemption the amount originally 
advanced shall for the purposes of the Act determine the valuation 
of the suit. But the proper valuation of a suit for redemption 
is the amount remainiog due on the mortgage or claimed on it 
by the mortgagee.^ It is that amount and the right oonneoted 
with it which is the usual subject of contention in a mortgage 
suit. "The rules laid down in the Court Fees Act are not to 
be taken as necessarily a guide in determining the value of 
the subject-matter of a suit for purposes of jurisdiction." (Per 
Birdwood J.y 

(1) Madhavrao Eknath v. Raoji, 1B85 P. J. 150, (Sargent, C. J. and 
Birdwood, J.)- 

(2) Kondajee Babaji v. Anau, <1883) 7 Bom., 448, (West and Nana- 
bhai,JJ.);Ramchandra v. Janardan, (1889) 14 Bom., 19, (Sarg^ent, C. J. 
and liaaabbai, J.). 

(3) Rupchand Kfaemchan^ v. Bftlvaat Narajan, (1887)11 Bom.i 591 
(West wad Birdwood, JJ.), 



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38 Chapter 11, S. 3i Pecuniary Jurisdiction, 

Valuation of a redemption-suit where nothing is due on 
the mortgage : — But where in a suit for redemption the mortgage 
debt was satisfied out of the rents and profits and no sum 
remained due on the mortgage, the amount of the original advance 
for the purposes of jurisdiction would determine the valuation ; 
and where in such a case the defendants denied the mortgage and 
claimed the property as their own, such denial would not alter the 
character or nature of the subject-matter of the suit. It continued 
after the denial in its original shape so far as the plaintiffs were 
concerned. Nor is the complexion of it entirely changed because the 
defendants put forward certain grounds of defence which, if well 
founded, must defeat the plaintiff's right to redeem.^ In the case 
from which this remark is taken. Parsons J. observed, '« If tne caae 
had been one of first impression I should have been inclined to hold 
that the words « mortgaged property " in paras (y) and (z) of g. 3 
must be construed to mean ^^ admittedly mortgage property;'' and 
that the provision of s. 10 could not apply to cases where the 
mortgage was denied and the title had to be proved. The point is, 
however, concluded by authority .^ At the same time I must express 
my opinion that an amendment of the Act is necessary, for it is not 
right that under an Act passed only to relieve the agricultural 
classes from indebtedness, Sub-Judge of second class should be author- 
ized to deal with questions which affected title to immoveable 
property and to dispose of them with final effect, on the mere alle- 
gation of the plaintiff that such property was mortgaged and that the 
amount due on the mortgage at the date of suit was less than 
Rs. 100."3 

Suits referred to in cl, (b) .-—include suits for (a) redemption, 
(b) foreclosure or sale and (o) possession of mortgaged property 
by the mortgagee as such, {d) as also suits for money on contracts, 
express or implied, 

(1) Amrita v. Naru (1888), 13 Bom., 489, (Birdwood and Parsons, JJ,). 
One of the grounds of defence urged in this case was that the defendants 
had made improvements to a*great extent on the mortgaged property. 

(2) Govindsicgh v. Kallu,2 All., at p, 780; see also Rupchand Khem- 
chand y. Balvant Narayan, 11 Bom., 591. 

(3) Amirta Bin Bapuji v. Naru Bin Gopaiji Shamji (1888) 13 Bom., 489, 
(Birdwood and Parsons, JJ«)« 



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Chapter II, S. ^, clauses (w) and (x). 39 

Where by a written contract the defendant was employed 
to sell the plaintiff's goods npon certain terms and to account for the 
goods or their proceeds when called npon, held, that a suit calling 
npon the defendant for an acoonnt in pmsnance of bis undertaking, 
was a snit on the contract and came within the provisions of s. 8.^ 

Suits falling under clauses (w) and (x) :— The Legislature 
seems to have intended to include in these clauses all claims 
of a pecuniary nature arising out of contracts whether written 
or unwritten.^ It is difficult to ascertain the precise intention 
of the Legislature in sub-dividing such suits under clauses 
(w) and (x). Suits for the recovery of money would fall both 
under clauses (w) or (x). So far as Chapter II is concerned, it is 
immaterial whether such a suit falls under cl. (w) or cl. (x). But 
the distinction between the clauses becomes of immense importance 
when the application of other provisions of the Act comes in 
question. For instance, in a suit for the recovery of money when 
falling under clause (w) [and when the defendant is an agri- 
culturist] the amount of the claim will be determined according to 
the rules in ss* 12, & 13, and the suit will be governed by the 
special Limitation-law in s, 72. Moreover such suits will have 
to be instituted at the place where the agriculturist-defendant resides, 
either in the Court of a Subordinate Judge or of a Village-Munsif 
according to the value of the subject-matter of the suit. None of 
these special provisions would apply to a snit for the recovery 
of money, when it falls under clause (x). It is to be noted that 
except under this Chapter, clause (x) is nowhere specially refened 
to in this Act. From what appears from a perusal of some of the 
provisions of the Act, clause (w) [barring of course suits for the 
price of goods sold] seems to refer to suits arising out of money 
lending transactions between a creditor and a debtor, wherein 
money is to be recovered for money^ spent, lent, or advanced 
to or for the defendant. It would thus include *' all suits on bonds, 
khatas, written acknowledgments and the like, and would exclude 
suits for rent, for damages, &c.*'^ 

ffiLakshman bin Ramji v. Rampiarbai, 1897 P. J. 290 (Farran, 0. J. 
idy, J.). 

(2) It is doubtful whether the word money as used in the section is 
to be understood according to the deHnition given in s. 2, Rule 4th. 

(3) For the contents in the invcrtod commas, read the Statement of 
Objects and Reasons for amending s. 72. by Act XXIII of 1886. 

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40 Chapter, !!,.$• 3^ tiiauses^(w)M)i(i;). 

Clau$e (w) :— It has beea he\d that a suit to recoyar , money 
spent by the plaintiff on account of the defendmt^V o^ ,one on 
a bond to ^eonre the payment of the prioe of grain and thQ interest 
due on a mortgage bond given to seoure an old debt,^ would 
fall under qK (w}. 

Clause (x) :— A suit for the redemption of a chattle^ and a 
suit to recover fees from a client* would fall under clause (x). 

A suit for emoluments :— A suit by plaintiff to recover his 
share of the emoluments arising out of reading Furans from 
the defendants, held to be a suit for money had and received by 
the defendsoits for plaintiffs use [the defendant having rightly 
received it from the Temple Committee but being under an implied 
contract to pay the plaintiff his share] and failing under cl. (x.) of 
s. 8, and not a suit for damages*^ 

A question of title in a suit for rent : — In a suit to recover 
a sum of Rs, 30 as rent under s. 3, cl. (x) a second class 
Subordinate Judge incidentally determined the question of the 
plaintiff's title to the land for which the rent was claimed. The 
point then arose, as to whether the decision of tie suit by the Subordin- 
ate Judge could be appealed against, or whether it was open to 
revision by the Special Judge under s 50 of the Act, held tha^ 
although a question of title was incidentally raised and decided in 
the case, still by analogy with the decisions under the several Small 
I'ause Courts Acts, the suit as brought was one properly falling 
under cl. (x) of s. 3. and that no appeal lay.^ 

(1) Ganesh Krishnaji v. Krishnaji, (1889) 14 Bom., 387, (Scott and 
Candy, JJ.)- 

(2) Dipchand v. Kashi, 1881 P. J. 116, (Westropp, C. J. and Pinhey, J.)* 

(3) Kashiram Mulcband v. Hiranand Surtaram, (1890) 15 Bom., 30| 
(Birdwood and Candy JJ.). 

(4) Rangu V. Kalu, 1885 P. J. 221 (Birdwood and Jardiwe, JJ.)» 

(5) Sbankorbhat v. Eaghunathbhat, 1«92 P. J. 288, (Bayloy, Ag. 0. J» 
and Candy, J.); Rangu v. Kalu, 1885 P. J. 221 ; referred to. 

(6) Shidhu v. Ganesh, (1891) 10 Bom., 128, (Sargent, C. J. and 
Birdwood, J.). 



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Chapter H, $• ^ clauses ij) aad (9). 41 

A suit to recover revenue or Mamul Judi is not one on 
a written or unwritten engagement :— The word 'eDgagement' 
refers to a contra ctual engagement. So a suit for land rerenne 
would not &H under this clause ; as it is clear that the liability for 
land revenue does not spring from a contractual engagement nor is 
the claim in respect of it one for damages within the meaning of 
sub-section {x).^ a suit by an Inamdar of a village to recover 
Mamxd Jvdiy i,e.^ money due on account of the Deshmukhi allowance 
assessed on^ land in the village is not a suit for money due on an 
unwritten engagement, or for rent within the meaning of clauses 
(w) or (x), the allowance being in the nature of a tax or cess 
imposed on the property.^ 

Clauses (y) and (z)— Mortgaged property:— The words 
« mortgaged property " refer to immoveable property only*^ The 
expression is not to be limited by a technical consideration of what 
in a lawyer's point of view constitutes a mortgage. It should be 
read in its ordinary popular sense. Therefore, property given 
for enjoyment till a debt was liquidated from its profits is 
mortgaged property.^ 

Sale or Mortgage : — There are some transactions which, 
&ough appearing to be sales, are, in reality, mortgages. To this class 
belong cases where there is ostensibly a conveyance with a collateral 
agreement for repurchase by the vendor on payment of the purchase- 
money wdthin a stipulated time ; and such a collateral agreement 
may be either introduced into the conveyance itself or may be made 
at a subsequent period. 

(1) Sheik Gulam v. Kashinath Bapuji, (1901) 25 Bom., 244, s. c. 2 Bom. 
L R., 795, (Jenkins, C. J. and Batty, J,). 

(2) Narayan v. Gangadhar, 1888, P. J. 283, (Birdwood and Parsons, JJ.), 
la this case the Court remarked that the word * rent ' as used in s. 3 must 
mean something agreed to be paid in consideration of the transfer of a 
right to enjoy immoveable property. 

(3) Kashiram Mulchand v. Hiranand Surtaram, (1890) 15 Bom., 30} 
(Birdwood and Candy, JJ.). 

(4) Rama v. Yesu, 1896 P. J. 284, (Farran, C. J, and Fulton, J.), 
Mahipatrao v. Gambhirmal, 1886 P, J, 141, referred to. 



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42 Chapter II, S. 3, Sale or Mortgage. 

Under these oirottmstances, the question whether the transaction 
is a mortgage properly so called or is a sale with a right to repurchase* 
depends upon the special circumstances of each case : — (1) where the 
money paid by the grantee is not a fair price for the absolute purchase 
of the property conveyed to him ; (2) where the purchaser was not let 
into immediate possession of the property; (3) where instead of 
receiving the rents for his own benefit, he accounted for them to 
the grantor and only retained the amount of interest ; (4) where the 
expence of drafting and preparing the deed is borne by the transferor ; 
(5) where there exists a power to the transferee to recover the suna 
nauied as the price of the repurchase ; (6) where there is a covenant 
for the payment of interest ; (7) where the stipulated period of 
repurchase is a very long one. In all these cases the deeds are to 
be taken as constituting mortgages ;i these are indeed very important 
criterions for us, and some Judges have gone the length of holding 
thekt oral evidence of the acts and conducts of 'parties^ whether con- 
temporaneous or subsequent, is always admissible in order to show- 
that the deed, though ostensibly a conveyance, was in reality intended 
to operate only as a mortgage** It is clear that the question how far 
the intention of the mortgagor may be gathered from sources other 
than the document itself, has now, so far as India is concerned been 
settled by the Privy Council, who observed : — " Their Lordships do 
not think that oral evidence of intention was admissible for the 
purpose of construing the deeds or ascertaining the intention of the 

parties The case must, therefore, be decided on a consideration 

of the contents of the documents themselves with such extrinsic 
evidence of surrounding circumstances as may be required to show 
in what manner the language of the document is related to existing 
&cts,"^ For this purpose reference may be made to cognate 

(1) Gourds Transfer of Property Act, Vol. II p, 556. See also Pate! 
Kanchhod v. Bhikhabhai, 21 Bom., 704. 

(2) Preouath v. Madha Sudan, 25 Gal., 603 (F.B.). Khankar v. Ali Hafez, 
28 Cal., 256. Mahomed v. Kaaeer Ali, '28 Gal., 289. The Galcutta High Court 
is confirmed in this view of the matter and holds that the P. G. decision in 
the case of Balkishen Das, r. Legge cited in thd next foot-note, does not 
come in the way of the view. Vide the two cases in 38 GaL, specially the 
judgment of Banerji, J. in 28 Gal., 256 ; and^ee eontra 25 Mad., 7* 

(3) Balkishen Pas v. Legge, 22 AIL, 149. 



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Chapter H, S. 3f clauses (y) & (z). Sale or Mortgage* 43 

documents executed at or about the game time as indicative of the 
intention of parties.^ Distinction must, however, be made between 
the admissibility of evidence, to show that a recital of a fact in 
a contract is erroneous, and evidence to vary its terms.^ If it was 
not so, facilities would be afforded for the grossest frauds.' Both 
the Privy Council cases reported in 22 Allahabad and noted below 
were considered by a Division Bench of the same High Court and 
it was held that extrinsic evidence was not admissible for the purpose 
of showing that a document which purported to be, and on the face 
of it was, a deed of sale was in reality a deed of gift* And a Division 
Bench of the Bombay High Court recently held that where a 
written document is alleged to be governed by a contemporaneous 
oral agreement or statement of intention which must be inferred 
from the surrounding circumstances, the Court must be guided by 
s. 92 of the Evidence Act ^ and the Court cannot have recourse to 
those equitable principles which enable the Court of Chancery to 
give relief in those cases of which Alderson v. White ^ sjxi Lincoln 
V. WrlgW are examples*^ 

If the words of a deed are plain and unambiguous, the fact 
that the parties understood it otherwise and acted on such under- 
standing for a period of more than forty years cannot affect tbp 
construction of the instrument and the effect to be given to it.^ 

In construing a mortgage-deed, the terms of which are of a 
doubtful character, the intention of the parties, as deducible from 
their conduct at the time of execution and other contemporaneous 
documents executed between them, are to be looked to.^® 

(1) See 25 Mad., 7 ; in this case the 33 AIL, P. C. case is followed and 
the Calcutta cases above referred to are dissented from. 
(•2) Sah Lai Chand v. Indarjit, 22 All., 370, (P. C). 

(3) Und^ at p. 375. 

(4) Faiz-un-nissa y. Uanif-un-nissa and others, 27 All., 612. 

(5) Balkishen Das v. Le<rge referred to, 

(6) (1858) 2 DeG. and J. 98. 

(7) (1859) 4 DeG. and J. 16. 

(8) Dattoo V. Ramchandra, (1905) 7 Boui. L. R., 669, (Jenkins, 0. J. 
and batty, J.). 

(9) North Eastern Railway v. Lord Hastings, (1900), A, C. 260: 
followed in 35 Mad., 7. 

(10) Jafar Huason y, Ranjit Singh, 31 All., 4. 



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44 Chapter II, S. 3i clauses (y) and (z). 

Clauses (y) and.(z) apply to an agriculturist assignee:— 
Th6 provisions of these clauses are not limited to an agriculturist 
who is himself the original mortgagor or mortgagee ; they would 
equally apply to their assignee if he is himself an agriculturist,^ And 
the fact that the assignor was a non-agriculturist would not, it 
seems, make any difiPerence, provided the assignment was a bonafde 
and ft real transaction. 

Clause (y)— A suit for the possession of mortgaged 
property :— must, in order to fall under this clause, have been 
brought by the mortgagee against the mortgagor as such. A suit 
by a mortgagee to recover possession of the mortgaged property from 
the mortgagor under the terms of a lease accepted by the latter from 
the former does not come under this clause.* So also a suit based 
on a dispossession of existing possession does not fall under this 
clause. An incidental reference to a mortgage in the plaint does 
not aflfect the question, when the suit is one to recover possession 
from a person who is not the mortgagor.^ 

Clause (z)— A suit in ejectment :— In a redemption-suit 
governed by the provisions of Chapter II of the Act, one of the 
defendants was sued merely as a person in possession, held that the 
suit against that defendant was one in ejectment. A suit in ejectment 
is not governed by s. 3, clause (z) and an appeal against the 
decree in such a suit lies to the District Court.* 

4. Certain suits to be instituted in Courts 
of First Class Subordinate Judges :— Where a 

Subordinate Judge c(f the first class and Subordinate 
Judge of the second class have ordinary jurisdiction in 

(1) Shripati V. Sitaram, 1887 P, J. 296, (Sargent, C. J. and Nanabhai, J.); 
sea Annaji Waghuji v. Bapuchand Jethiram, (1883) 7 Bom., 521 : Dnyanu v! 
Appa, 1893 P. J. 271; cited flw^tf. 

(2) Mulchand v. Raoji, 1883 P. J. 84 (West and Nanabhai, JJ.). 

(3) Krishnaji v. Hari Janu, (1904) 28 Bom., 635 ; s. c. 6 Bom. L. R , 
588 ; (Jenkins, 0. J. and Aston, J.) ; following Mulchand v. Kaoji, supra. ' 

(4) Sakharam v. Shripati, (1891) 16 Bom., 183 ; Amrita v. Naru, (1888); 
13 Bom., 489, distinguished, ^ ^' 



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Chapter II, ss« 4 and 5« 45 

the same local area, every suit referred to in section 3, 
clause (b) , and instituted in such local area shall, if 
the amount or value of the subject-matter of such suit 
exceeds one hundred rupees and does not exceed five 
hundred rupees, be instituted in the Court of the 
Subordinate Judge of the first class. 

Commentary. 

The word * instituted* explained :— The plaintiff sued to 
establish his title to, and recover a moiety of a cash allowance payable 
to him from the Mamlatdar's treasury at Satara. The claim was 
valued at Rs. 455-4. The plaint was filed in the Court of the 
First Class Subordinate Judge at Satara, who transferred it for 
trial to the Joint SubnTudge of the Second Class. The suit was 
dismissed on appeal on the ground of want of jurisdiction under 
8, 4. Held that the requirements of s. 4 were sufficiently complied 
with by the suit having been filed in the Court of the Subordinate 
Judge of the First Class. The word ** instituted " in s. 4 does not 
mean heard and determined. The Subordinate Judge of the First 
Class was competent under s, 23 of Act XIV of 1869 to transfer the 
suit to the Joint Subordinate Judge of the the Second Class who 
was deputed to assist him.^ 

5. Subordinate Judges not to act as Judges 
of Small Cause Courts :— Notwithstanding any- 
thing contained in the Bombay Civil Courts Act 
(XIV of 1869), section 28, no Subordinate Judge shall 
be invested with the jurisdiction of a Judge of a Court 
of Small Causes. H 

Old Law. 

The words repealed by Act XVI of 1895 are :— 

<<And any such jurisdiction heretofore conferred on.tbe Subordinate 
Judge shall be deemed, except as regards suits instituted 
before the said first day of November, 1879, to have been 
withdrawn.'^ 



(1) Manaji v. Narayanrao, (1894) 19 Bom,, 46 (Jardine and Kanade, JJ.). 
(a) Words repealed by Act XVI of 1895 are omitted. 



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46 Chapter II, s. 6. 

Commentary. 

5. 38 of the BDmbay CivU Courts Act runs thus :— 

The Governor of Bombay in Council may invest, within such local 
limits as he shall from time to time appoint, any Subordinate 
Judge of the first class with the jurisdiction of a Judge of a 
Court of Small Causes for the trial of suits coginzahle by such 
Courts up to the amount of 500 rupees, and any Subordinate 
Judge of the second class with the same jurisdiction up to the 
amount of 50 rupees. 

The Governor of Bombay may, whenever he thinks tit, withdraw 
such jurisdiction from any Subordinate Judge so invested. 

Although as provided for in s. 5 of this Act, the above section 
from the Bombay Civil Courts Act cannot be brought into service ; 
yet by Chapter II of this Act all Subordinate Judges in the district 
to v^hich this Chapter may apply are invested with powers which 
are more or less summary ; the powers, [so far as the scope of this 
Chapter goes] being enlarged so as to include mortgage-cases of the 
class in which agriculturists are so commonly involved. 

6. Jurisdiction of Subordinate Judge and 
Small Cause Court :— The Local Government may, 
from time to time, by notification in the local Gazette, 
direct that any class of suits which a Subordinate Judge 
would be precluded from hearing by seetion 16 of the 
Provincial Small Cause Courts Act (IX of 1887), 
shall be heard and determined by him and not other- 
wise and may, by a like notification, cancel any such 
direction. 

S. 16 of Act IX of 1887 referred to above runs thus : — 

Save as expressly provided by this Act, or by any other enactment 
for the time being in force, a suit cognizable by a Court of 
Small Causes shall not be tried by any other Court havinof 
jurisdiction within the local limits of the jurisdiction of the 
Court of Small Causes by which the suit is triable. 

Notifications under this section :— For notifioationsi under 
this section, see Part II of this book. 



(1) No. 7057, B. G. G. for 1879, Pt. I, p. 934 ; No. 1664, B. G, Q. 
for 1901, Pt I, p. 490. 



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Chapter 11, S. 1. A7 

7. Summons to be for final disposal of 
suit : — In every case in which it seems to the court 
possible to dispose of a suit at the first hearing, the 
summons shall be for the final disposal of the suit. 

Court to examine defendant as a witness :— 

In every suit the court shall examine the defendant as 
a witness unless, for reasons to be recorded by it in 
writing, it deems it clearly [^] unnecessary so to do. 

\y\ Explanation: — The compulsory examination 
of the defendant shall not be dispensed with merely by 
reason of the fact that the defendant has filed a written 
statement. 

Old Law. 

For old law see foot-notes below. 

Object of the section: — *'The presence of the defendant being 
essential for the thorough investigation proposed, and the raiyats 
being, through various difficulties, apt to leave their suits undefended 
it has beeo provided [in this section] that, except for special reasons, 
no suit shall be decided e^vparte, but that the Court shall compel the 
defendant io appear."^ 

In every suit :— lu districts to which the whole of Chapter II 
h applicable, the provisions of s. 7 will evidently apply to suits of 
the nature described in s. 3. But where Chapter II is not so extend- 
ed, but s. 7 alone is extended, it becomes difficult to ascertain the 
precise meaning of the expression m every suit appearing in s, 7. 
The expression itself is too comprehensive and is not followed by any 
qualifying words, as arc to be found in s. 10, to show that it has 
reference to suits to which Chapter II applies. Yet the words cannot 
be ver}' literally construed and the recent extension of s. 7 cannot 



(a) " Clearly " was added by Act VI of 1895, s. 6. 

(b) This explanation was inserted by Act VI of 1895, s. 6. 

(I) See Statement of Objects and Heasons for Act XVII of 1879. Words 
in brackets are our own. For the form of the summons, see H. C, circular 
orders, B, G. G. for 1903, Ft, I, pp. 388, 389, cited in Part II of this book. 



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48 Chapter 11, S. % Examination of Defendant. 

be taken as applicable to suits not of the nature described in s. 3. 
To construe them otherwise would be equivalent to giving the 
words a meaning which the Legislature never intended to give them, 
and the authority given to the Local Government to extend to any 
district or districts any provisions of the Act cannot be so exercised 
as to give to any of them a meaning and operation which the 
Legislature never intended. 

The difficulty, however, does not cease here ; because granting 
that section 7 is to apply to suits described in s. 3, it is next to be 
seen whether the description of suits given in section 3 is to be 
taken literally or only by way of illustration ; or in other words 
whether a defendant is compnlsorily to be examined under s. 7 in 
suits falling under clauses (w) or (x), the amount or value of 
which exceeds rupees 500. Thia difficulty is of every day occurrence 
and different practices have been found to be prevailing in different 
Courts in the moffussil. Under the circumstances by the analogy of 
the construction^ placed upon the reference to s. 3 in ss. 11 and 12, it 
is submitted that the provisions of s. 7 would apply to suits of 
unlimited value though otherwbe of the kind or kinds specified 
in s. 3 of the Act.^ 

" The Court shall examine the defendant":— The wording 
of the section is no doubt peremptory ; but where a defendant does not 
turn up even though a witness summons is duly served upon 
him, it seems it would be a sufficient reason for the Court to dispense 
with his examination, and proceed with the suit. The word de- 
fendant is wide enough and evidently refers both to agriculturist as 
well as non-agricultarist defendants. It w^ould be a wrong practice 
not to examine' a defend^^nt because he is described in the plaint 
as non-agriculturist. The plaintiff creditor is presumably interested 
in representing an agriculturist defendant to be non-agriculturist ; 
and it would thus be necessary to examine every defendant to 
ascertain whether he is an agriculturist or not. 

(1) See Tulsidas v* Virbasapa, (1880) 4 Bom., 624, (West, J.)* 

(2) One ot the Honourable Members in the Legislative Council (in 1896) 
had proposed to make this section one of universal application ; but the 
S. Committee decided that the section should remain in chapter II. 



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Chapter 11, s. 7* Examination of Defendant. 49 

S. 7 and s. Z2 : — The examination of tbe defendant is also 
rendered necessary by s. 12 of this Act. This provision as to 
examinatiou was purposely introduced in s. 12 in order to dispense 
-with the necessity of extendiog s, 7 along with Chapter III, to those 
places where Chapter U is not to be extended. Bot the recent noti- 
fication^ extends s. 7 of Chapter II along with s. 12 to the whole of 
this Presidency. With what view this is done by the Local 
Government cannot be ascertained. Bat its effect is to make the 
examination of the defendant more compulsory than it would have 
been under the provisions of s. 12.' 

Explanation to s. 7 : — " It is a favourite dodge with the 
Sawkar to get the defendant to file a vnritten statement containing 
an admission of his liability and then keep him out of Court. It 
is for the purpose of not allowing such a dodge to be successful, 
and to enable the Court to see that the defendant has exercised an 
intelligent option in defending the suit, that this explanation 
has been inserted."' 

8. (Written Statement.)— ^^/^^/^o? by Act VI 

of 1895, s. 3. 

Old Law. 

section 8 was : — 

In suits of the descriptions mentioned in s. 3, clauses (w) »nd (x), 
no party shall be entitled, without the permisBion of the Court 
tu file a written statement. 

9. (Record of evid[ence)—ii?^/^^/^rf by Act VI 
of 1895, s. 3. 



(1) Ko. 4144, B. G» (1. (11)06), pt. I., p. 1038, 

(3) See also the note to 9. 12 heading " Shall examine both the plaintiff, 
and the defendant as witnesses." 

(3) Read Honourable Mr. P. M. Metha's Speech- Proceedings of th« 
Supreme Legislative 'Council for 1895. 

7 

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50 Chapter II, S. xo. 

Old Law. 

Section 9 was : — 
Beoord of evidence :— When the suhject-matter of any suit docs 
not exceed ten rapees in amoant or value, it shall not he 
necessary to take down the eyidence, or to make a memo- 
randum thereof in manner provided by the Code of Civil 
Procedure ; but in cases where the evidence is not so taken 
down, and no memorandum is so made, the substance of the 
evidence shall be stated in the judgment. 

10. No appeal to lie :— No appeal shall lie 
from any decree or order passed in any suit to which 
this chapter applies. 

Similar Provisions — are to be found in Chapter IV (s, 33), 
Chapter V (s. 36), Chapter VII (s. 54, para 4); aad before 
Act VI of 1895 was enacted, the finding as to whether a person was 
or was not an agriculturist was final (olds. 73). An attempt 
was made in the Amending Bill of 1882 to apply a similar bar 
to appeals in matters falling under chapter III, but the proposal 
was disapproved, 

Superintendance and Revision: — The suits and proceedings 
tinder this Chapter will be subject to the powers of superintendance 
and revision given by Chapter VII. 

This Chapter does not apply : — Where the subject-matter 
of a suit heard by a Subordinate Judge of the second class exceeded 
Rs* 100 but did not exceed Rs. 500 and the parties had not agreed 
that the provisions of Chapter II should apply to the case, held that 
an appeal would lie from the decision of the Sub-Judge.^ So also 
if a case falling under this Chapter is heard and decided by an 
Assistant Judge, an appeal will lie against the decision.^ 

A decree in a suit for redemption of a chattel is not 
appealable : — A suit was brought to redeem an ornament pledged 
for a sum below Rs. 500. The suit was filed in the Court of the first 
class Subordinate Judge at Satara, where this Act applied. The 

(1) Madhavrao Eknath v. Raoji Walad Bhowanji, 1885 T. J. l60, 
^^Sargent, C. J. and Birdwood, J.). 

(2) Mahadji v. Kamcbandra, 1885 P. J. 159, (Sargent, C. J. find 
Birdwood, J.)- 



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Chapter 11, S. zo« 5l 

Subordinate Judge passed a decree for redemption of the pledge. 
Held that, although neither of the parties was an agriculturist, the 
case fell onder Chapter II of the Act, and that no appeal lay 
against the decree of the Subordinate Judge. Held^ further, that 
the Special Jadge had revisional jarisdiction in the matter.^ 

The provisions of this Chapter apply to suits described in s. 3, 
For suits to which section 3 applies and from which no appeal lies, 
see cases noted below and already cited.^ 

If a District Judge on appeal raises a new issue and 
finds defendants agriculturists, he should refer parties to 
proper tribunals :— A suit was filed as an ordinary suit and as 
such tried by second class Subordinate Judge. On appeal, the 
District-Judge raised a new issue and found the defendants agri- 
culturists, and dealt with the appeal as though he had jurisdiction. 
Heidi that he had no jurisdiction to hear an appeal in the suit as a 
suit under this Aot, and that he ought to have referred the parties to 
the proper tribunal, and not himself to have dealt with it in appeal.^ 

The plea of bar allowed at the hearing :— where the Sub- 
Judge decided that the case did not fall under Chapter II of the Act 
but had decreed plaintiffs claim and he as respondent did not file 
cross-objections under s. 561 of the Civil procedure Code but raised 
the question at the hearing of the appeal, but the appellate Court 
refused to consider this preliminary point because the lower Courfc 
had decided that the case was not one under Chapter II and because 
no objections under s. 561 had been filed. Held that the decision of 
the first Court that the case did not fall undei Chapter II formed no 
element of the decree passed in plaintiff's favour and it was not 
necessary for him to appeal against it or to formally object to it 
under s. 561. It was open to him to take the objection to 
the Court's jurisdiction at the hearing and it should have been 
considered.^ 

(1) Kashiram Mulchand v. Hiranand iSurtaram, (1890) 15 Bom., 30, 
(Birdwood and Candy, JJ.). 

(2) Mabadji v. Hnmohftndra, 1885 P. J. 159. Amrita v. Naru, (1888) 13 
Bom., 489. Siiidhu v. Ganesh, (1891) 16 Bom., 128. Sakharam v. Shripati, 
(1891) 16 Bom., 183; and other cases cited under s 3; see also note to s. 3 
cl. (a), headed : — " Umier the provisions hereinafter contained.'* 

(3) Janardan v. Ananta 1896 P. J. 396. (Karran, C. J. and Hosking-, J.). 

(4) Kajai v. Appuji, P. J., 1888, 220, (^Birdwood and Parsons, J3,)^ 
fottowing Bupchand v, Balvant, 11 Bom^, 591, 



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52 

CHAPTER IIL 

Of Suits and other Proceedings to which 
Agriculturists are Parties, 



Scope of this Chapter: — ^This Chapter introduces many im. 
portant provisions for the relief of agriculturist-debtors. It mainly 
aims at taking full accounts from creditors. The first four sections 
of this Chapter apply to the determination of the debts of agri- 
culturists in a mode specified by this Act. The history and merits 
of the disputed and doubtful cases will be inquired into, and an 
account will be taken in a certain way if the Court considers 
the course to be necessary.^ Ss. 15 A, 15 B, and 15 
make some modifications^ in the provisions of the Transfer oi 
Property Act, by allowing the mortgagor time to pay his debt 
either at once [even if the time for payment has not come] or by 
instalm<*nts or by keeping the mortgagee in possession. Ss. 15 D, 
and 16 introduce novel relief to debtors who are thereby enabled 
to bring suits for accounts against their creditors and s. 17, which 
specially relates to suits under s. 16, makes a provision that a 
decree passed under s. 16 may direct that the amount declared 
under the said section may be paid by instalments. Section 18 gives 
to the debtor, who has filed a suit for account under s. 16, a right 
of depositing the amount of the debt in Court. S. 20 is an 
improvement upon s. 210 of the Civil P. Code. And then come 
the most important sections 21 and i^; the former saves the person 
and the latter protects, the immoveable property [not specifically 
pledged], of the agriculturist-debtor from arrest and attachment 
respectively. 

(1) Hon'ble Mr. Hope's Speech in moving the Bill; Proceedings of the 
Supreme Legislative Council (1879) ; Vol XVIII p. 144. 

(2) Read the judgment of Ranaie J. in Bhajrvaa v, Ganu, 23 Bodl, 
644, (1899) ; s. c. 1 Bom. L. R., 136 ; see s. 2 (a) of the T. P, Act, 



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Chaptez III, & 22. 53 

This Ghapier governs suits and proceedings before Courts of 
all grades, except the Courts of yillage-Munsi& (vide s. 23), and 
is not limited in its application to suits for sums not exceeding 
Bfi, 500. , The reference in this Chapter to clauses (w) (y) and (z) of 
s. 3 is only by way of illustration.^ The provbions of this Chapter, 
though mainly intended for the relief of agriculturist-debtors 
only, would, as pointed oat before, indirectly go to relieve non- 
agriculturist debtors also.' 

The provisions of ss. 12 and 13 are applicable only to 
suits instituted on or after the 1st day of November 1879^ [the day 
on which this Act comes into force].^ 

II. Agriculturists to be sued where they 
reside: — Every suit of the description mentioned 
in section 3, clause {w) , may, if the defendant, or, 
wlien there are several defendants, one only of such 
defendants, is an agriculturist, be instituted and tried 
in a Court within the local limits of whose jurisdiction 
such defendant resides, and not elsewhere. 

Every such suit in which there are several de- 
fendants who are agriculturists may be instituted and 
tried in a Court within the local limits of whose 
jurisdiction any one of such defendants resides, and not 
elsewhere. 

Nothing herein contained shall affect sections 22 
to 25 [both inclusive] of the Code of Civil Procedure. 

Commentary. 

Scope of this section :— " In order to prevent the pro- 
visions of Chapter III of the Bill [now this Act]* being evaded 
by entering into contracts with agriculturists of the four districts 

(1) Tulsidas v. Virbasapa, [1880]. 4 Bom., 624, (West, J.). 

(3) See Note : " Others can share the benefit of the privilege y" under •, 2. 

(3) Suryaji v. Tukaram, [1880] 4 Bom., 358. (Weitropp, O. J. and 
MbItUI, J.). The words Ttalicaed were repealed from s. 3 oU (a) by Act XVI 
of 1895. As to the effect of the repeal of these words, see oote to 0. 1« 
heading '< This Act how far reirospectiye.'^ 

(4) The words in brackets are our own* 



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54 Chapter III, S. xz. Place of Suing. 

to which the Bill [this Act]i extends, at places beyond 'the limits 
of those districis, we have introduced a section in the begining of 
Chapter III [this s. 11]^ requiring suits against such agricuUnrists 
to be brought where the defendants reside."^ This section governs 
suits coming under s. 3 cl. (w) when the defendant, or one of the 
defendants thereto is an agriculturist, Hence with respect to all 
other suits the place of suing will be the same as determined by 
Civil P. Code, or by Chapter V of this Act. 

It may be noted that so far as it goes, this section modifies s. 17 
of the Civil P, Code with respect to certain suits for the recovery 
of money which according to the provisions of this section are to be 
instituted and tried only in the Court within the local limits of 
whose jurisdiction the agriculturisirdefendant resides.^ 

Section ii, and the place of suing :— S. 11 extends to the 
whole of Britbh India as to suits brought against agriculturists of 
the description given in s. 2, In a suit against defendants, who 
were residents at Sholi^ur, for Rs. 1947, the price of goods sold 
and delivered* the defendants moved for a postponement for the 
issue of a commission to take evidence that they were agriculturists, 
The Court granted the commission holding that if the defendants 
established that they were bona fide agriculturists, they would be 
exempt from the jurisdiction of the High Court.* 

The effect of the extension of s. 11 of this Act by the 1st section 
to all British India, is simply to impose upon any person in any part 
of British India, who brings a suit of the nature mentioned in s. 3 
cl. (w) against an agriculturist or agriculturists residing within the 
districts of Poena, Satara, Sholapur and Ahmednagar, the necessity 

(1) The matter given iu Brackets is our own. 

(2) Vide the Beport of the Select Committee ; Gazette of India (1879) 
pt, V. p. 948. 

(3) Vide Bhagvan v. Gauu, [1899]. 23 Bom., 644; b. c. 1 Bom. L.R., 136. 
(Parsons, Ag, C. J.> and Rauade, J.). 

(4) TuWdai Dhunji v. Virbasapa, 4 Bom., 624, (We»t, J,)* 

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Chapter III, S. ir. Place of Suing. 55 

of institnting the suit and having it tried in a Conri ^vithin the 
local limits of whose jurisdiction he or they reside. The Court must 
necessarily be in some one of the said four districts.^ 

A suit was brought in the Subordinate Court of Haveli, under 
this Act, for the recovery of a sum of money, against agriculturists 
some of whom resided within the jurisdiction of that Court and others 
within the jurisdiction of Saswad Court* Defendants residing within 
the jurisdiction of the Haveli Court were proved to be non-agri- 
culturists under the Act, upon which the Haveli Court rejected the 
suit and refused to return the plaint for presentation to the Saswad 
Court on the ground that the case did nob fall within the provisions 
of section 57 of Civil Procedure Code. Ileld^ [ordering the 
return of the plaint] that s. 57 of Civil Procedure Code applied, 
because (a) no option as to the selection of the Court was allowed by 
law* and (b) none of the defendants were dwelling within the local 
limits of the Haveii Court; and that where the Court in which a 
plaint has been presented has no jurisdiction to try the suit, the 
proper procedure to be followed would be to return the plaint for 
presentation to the proper court.^ 

Transfer of Suits :— It juay be noted here that there is 
no provision in this Chapter similar to the one we meet with in 
6. 51 or in s. 35 of this Act empowering the District Judge to 
transfer a suit from one Court to another. Any of the defendants 
may, however, apply to the Appellate Court to which the Court 
in which the suit is brought may be Subordinate for a transfer of 
such suit to any other Court Subordinate io such Appellate Courts 
and the provisions of ss. 22 to 25 of the Civil P. Code will 
apply to the case/ 



(1) Purshotam Lalbhai v. Bhavanji Partab, [1880] 4 Bom,, .160. 
(Westropp, C. J. and Melvill, J.). The enumeration of the four districts in 
the case is in accordance witli the definition of the term AgriculturiBt as it 
then stood. 

(3) 10 Mad. 211 followed ; 5 B. H» C. 211 referred to. 

(3) Ladhajee v. Hari, [1899]. 23 Bom-j 679 b. c. 1 Born* L, R., 176, 
(Parsons, Ag., C. J. and Ranade, J.). 

(4) See the last clause of s. H • 



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56 Chapter 111, S. li. 

12- History of transactions with agricultur- 
ist-debtors to be investigated :— In any suit of 
the description mentioned in section 3, clause (ze/), in 
which the defendant or any one of the defendants H is 
an agriculturist, ' 

and in any suit of the dercriptions mentioned in 
section 3, clause (y) or clause (^), 

[^] the Court, if the amount of the creditor's claim 
is disputed, shall examine both the plaintiff and the 
defendant as witnesses^ unless, for reasons to be record- 
ed by it in writing, it deems it unnecessary so to do, 
and shall enquire [^] into the history and merits of the 
case, from the commencement of the transactions 
between the parties and the persons (if any) through 
whom they claim, out of which the suit has arisen, 
first with a view to ascertaining whether there is any 
defence to the* suit on the ground of fraud, mistake, 
accident, undue influence or otherwise, and, secondly, 
with a view to taking an account betw'^een such parties 
in manner hereinafter provided. 

When the amount of the claim is admitted and the 
Court for reasons to be recorded by it in writing believes 
that such admission is true and is made by the debtor 
with a full knowledge of his legal rights as against the 
creditor, the Court shall not be bound so to enquire, 
but may do so if it thinks fit. 

In other cases in which the amount of the claim is 
admitted the Court shall be bound to enquire as afore- 
said. 

(a) Words repealed by Act XXIII of 1881 are omitted. 

(b*b) These words were Bubstituted for tha original words by Act XXlll 

Of 1880, B. 0. 



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Chapter III, ss. 12 and 13. 57 

Section 9, clause first, of Bombay Regulation V of 
1827 is repealed so far as regards any suit to which 
this section applies. 

Nothing herein contained shall affect the rights of 
the parties to require that any matter in difference 
between them be referred to arbitration. 

Old Law. 

The words repealed by Act XXIII of 1881 are : — 

" Not being merely a surety of the principal debtor." 

The original words for which a substitation denoted in the foot- 
note above was made by Act XXIII of 1886 were : — 

" The court shall, if the amount of the creditor's claim is disputed, 
enquire." 

S. 13. Mode of taking account :— When the 

Court enquires into the history and merits of a case 
under section 12, it shall — 

Notwithstanding any agreement between the 
parties or the person (if any) through whom they claim, 
as to allowing compound interest or setting off the 
profits of the mortgaged property without an account in 
lieu of interest, or otherwise determining the manner 
of taking the account, 

and notwithstanding any statement or settlement 
of account or any contract purporting to close previous 
dealings and create a new obligation, 

open the account between the parties from the 
commencement of the transactions and take that account 
according to the following rules (that is to say) : — 

{a) separate accounts of principal and interest 
shall be taken : 

8 



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58 Chapter III, s. 13. 

{b) in the account of principal there shall be 
debited to the debtor such money as may 
from time to time have been actually 
received by him or on his account from 
the creditor, and the price of goods, if any, 
sold to 'him by the creditor as part of 
the transactions : 

{c) in the account of principal there shall not 
be debited to the debtor any money which 
he may have agreed to pay in contraven- 
tion of section 257a of the Code of Ci\al 
Procedure : 

i^d) in the account of principal there shall not 
be debited to the debtor any accumulated 
interest which has been converted into 
principal at any statement or settlement of 
account or by any contract made in the 
course of the transactions, unless-]: 
Court, for reasons to be recorded by it in 
• writing, deems such debit to be reasonable : 

\e) in the account of interest there «hall be 
debited to the debtor, monthly, simple 
interest, on the balance of principal for the 
time being outstanding, at the rate allowed 
by the Qourt as hereinafter provided : 

{/} all money paid by or on account of the 
debtor to the creditor or on his account, 
and all profits, service or other advantagies 
of every description, received by the creditor 
in the course of the transactions [estimated, 
if ncessary, at such money-value as the 
Court in its discretion,* or with the aid of 



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Chapter III, ss. 13 and 13A. 59 

arbitrators appointed by it, may determine J, 
shall be credited first in the account of 
interest ; and when any payment is more 
than sufl&cient to discharge the balance of 
interest due at the time it is made, the 
residue of such payment shall be credited 
to the debtor in the account of principal : 
(£) the accounts of principal and interest shall be 
made ttp to the date of instituting the suit, 
and the aggregate of the balances (if any) 
appearing due on both such accounts against 
the debtor on that date shall be deemed to 
be the amount due at that date, except when 
the balance appearing due on the interest- 
account exceeds that appearing due on the 
principal account, in which case double the 
latter balance shall be deemed to be the 
amount then due. 
H 13A. In certain cases rent may be 
charged in lieu of profits : — Where the mortgaged 
property is in the possession of the mortgagee or his 
tenants other than the mortgagor, and the Court is 
unable to determine what profits have been actually 
received, it may fix a fair rent for such property and 
charge to the mortgagee such rent as profits for the 
purpose of section 13 : 

Provided that, if it be proved that in any year 
there was an .entire or serious failure of the crops, an 
abatement of the whole or part of such rent may be 
flowed for th£ year. 

Commentary. 

Scope of s. 12 :— This section provides for the iavestigation 
into the history, of the transaction with an agriculturist-debtor, 
• [a] S. 13a was added by Act VI. of 1895, 3. 7. 

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60 Chapter III, Scope and Application of s. 12. 

when the matter comes to the stage of a regular suit, by examining 
the parties and by making further inquiry with a view to ascertain 
the defence and the amount of the debt [if any] due from the 
defendant. The reference in this section to clauses (w), (y) and (z) 
of s. 3 is only by w^y of illustration and there is nothing in the 
section to show that the relief was designed only for persons owing 
debts of small amount. Hence the section will apply whether the 
suit falls under Chapter II or not.^ Although clause (a) of s. i& 
not referred to in this section, still the provisions of this and succeed- 
ing sections 13 and 13a will apply to account-suits by foroe of 
sections 15d and 16 of this Act. 

The defendant ceasing to be an agriculturist^pendente 
lite — Held:, that having regard to the very special nature of the 
legislation embodied in s. 12 of this Act for the benefit of a 
particular and a very limited class, it was intended by the 
Legislature that a person claiming the benefit of that section 
at the tried shonld fill the character of an agriculturist as then 
defined by law.* 

" If the amount of the creditor's claim is disputed'': — 
In a case where the Subordinate Judge had omitted to enquire 
under this section, Chandavarkar, J. remarked : " Whether the 
Subordinate Judge was right or not in not holding the inquiry 
depends upon the question whether the amount of the creditors 
claim was disputed, for the existence of such a dispute is a prelimin- 
ary condition of the necessity for the enquiry directed by s* 12. 
The appellants, who sued to redeem the property in dispute, 
burdened with three usufructuary and three simple mortgages, 
claimed by their plaint to redeem on payment of about Es. 100 to 
the assignee of the mortgagee. The defendant, on the other hand, 
by his written statement, claimed that Rs. 17,502 were due to him 
under the mortgages. There was, then, a dispute as to the 
mortgagee's claim, which brought it within the operation of s. 12, 
para 3, and cast upon the Court the duty of holding an enquiry as 
directed by its provisions. We cannot accept the argument, that the 
expression, " if the amount of the creditors claim is disputed," means 
ihe amount mentioned in the bond or deed sued upon. Such a 

(1) Tulsidas V. Virbasapa, (1880) 4 Bom., 624 [628, 6291. (West, J.), 

(2) ghamlal v. Hirachand, (1880) 10 Bom., 367, cited in Dotes to s. 1. 



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Chapter III, s. 12. Examination of Parties. 61 

meaning narrows down the pl^iu sense of the term « claim ' and 
there is nothing in any of the provisions of the Act to ^va^^ant onr 
attaching to the word any other than its usual meaniag. Further, 
even assuming that the word ' claim ' means ' the amount mentioned 
in the bond sued upon,' such amount must be taken to be not 
snerely the amount of the principal lent but the aggregate of the 
sums payable in consequence of the liability created by the terms of 
the contract of lending embodied ia the bond."^ 

" Shall examine both the plaintiff and the defendant as 
-witnesses": — In order to ascertain as to what are the matters in 
dispute, the Civil Procedure Code provides in Chapter IX for the 
examination of the parties by the Court.^ But such an examination 
is not compulsory under the Code, while it is compulsory under this 
Act. The provision for the compulsory examination of parties is 
introduced in this section for the following reasons : — 

Section 7 of the Act merely makes the examination of the 
defendant compulsory in all suits under (Chapter II, Avhioh includes 
even non-agriculturist suits; but sections 12 to 14 apply to many suits 
which affect agriculturists only and do not fail under Chapter II, 
and it is even more important tliat the defendant should be examined 
as a witness in such suits than in many of the suits to which Chapter 
II applies. The defendant is generally the debtor, but in redemption 
suits it is the plaintiff who is the debtor, and it is his examination 
that is most necessary. It is, moreover, almost impossible for 
the Courts to investigate the past history of an old debt in a 
satisfactory manner without examining both creditor and debtor 
as witnesses. x'\gain, unless a provision against eojparte decrees be 
inserted in Chapter III, it will not be possible to guard against 
exparte decrees in other districts to which the Act may hereafter 
be extended without also extending the other provisions of Chapter 
II at the same time.'*'^ 

"Unless for reasons it deems it unnecessary so to do": — 

The provisions of this section as to examination are not as obligatory 
as those of s* 7 of this Act. The reasons which mav lead a Court 



(1) Patlu V. Naru, (1905), 7 Bom. L. K., G88,(Chanciavarkar& Aston, JJ.). 

(2) See Subbaji v. Shiddappa, 4 Bom. L. R., 86, and H. C. Circular orders 
(1903) Chapter I, s. 17. 

(3) Statement ot Objects and Reasons ; (Act XXIIl of 1886.). 



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62 Chapter III, s. 12. Court bound to inquire. 

in raliag that the examination of the parties is unnecessary would 
vary according to the circumstances of each case. And alt.hongh 
it is very much difficult to imagine then, it may be taken that, 
when the transaction between the parties glviug rise to the suit is of 
a recent date and is not complicated, and when the parties are re- 
presented by pleaders and have stated their case fully in the plaint 
and in the written statement, or where the parties to the suit 
are merely the representatives or assignees of the parties to the 
original trausaction, and who consequently have no personal 
knowledge of the same, the Court may dispense with their 
examination, when such examination would require unnecessary 
adjournments. 

" And shall enquire into the history, &c."— Where the 
defendant's [mortgagee's] claim Is disputed by the plaintiff 
[mortgagor], the mere fact, that the plaintiff did not bring to the 
notice of the Subordinate Judge the })rovisions of s. 12 and insist 
upon an inquiry thereby directed, did not exonerate the Subordinate 
Judge from the responsibility cast upon him by the said provisions 
in plain and unmistakable terms, independently of the wishes or acts 
of the parties. The words of the section are that the Court '' shall 
enquire''^; there js no discretion left to inquire or not where the 
oreditor's claim is disputed. The duty imposed upon the Court in 
imperative terms was obviously intended by the Legislature for the 
protection of the agriculturists, as a matter of public policy, and no 
Oonrt can neglect it or omit its performance on the ground that the 
party, for whose benefit it was created, waived it. It is not at the 
invitation of any party to a cause that the Court has to perfom that 
duty. The Court must act sxio moto, and hold an inquiry as directed 
by the section, if the amount of the creditor's claim is disputed. 
... Where the inquiry is not so made from the commencement of 
the transactions between the parties, the decree of the lower Court 
will be reversed and the case sent back for an inquiry and for 
taking a fresh account under ss. 12 and 13.i 



(1) Patlu V. Naru, (1905) 7 Bom. L. R., 688 (ChaDdavarkar aud 
Aston, JJ.); Putaji v. Sadashiv, 1887 P.J. 211. (Sargent, C. J. and 
Nanabhai,J.); Appa v. Bapu, 1885 P. J. 255 (Birdwood and JarJine, JJ )• 
Oanesh v. Kashi, 1888 P. J. 132 (Birdwood and Paisoi.s, JJ.). * * 



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Chapter III, s. 12. Court bound to inquire. 63 

In a case where the plaintiff sued, under s. 3 cl. w., for money 
<lue on a bond, dated the 8th September 1877, the defendant 
though duly summoned, did not appear oa the day fixed in the 
summons, which was for the final disposal of the suit. The Court, 
therefore, proceeded with it e.vparte. The defendant, being subse- 
quently summoned and examined as a witness under s. 7 of the Act* 
admitted the bond sued upon, but pleaded part-paymeut of the 
plaintiff's claim. He then applied to the Court that his witnesses 
should be summoned, and that their evidence be taken in support of 
his allegation. The Subordinate Judge was of opinion that the de- 
fendant was not entitled to offer the evidence. On his referring the 
case to the High Court, held, that it was his duty to summon the 
witnesses named by the defendant, as the Court is bound Ijy s. 12 to in- 
quire into the merits of a case whenever the amount of the claim is 
disputed. Sections 100, 101 and the like of the Civil Procedure 
Code cannot affect t';e qu;3stion, in as much as by s. 74 of this Act, 
the Civil Procedure Code is only to be applied so far as it is con- 
sistent with this Act.^ Moreover, the point that the Lower Court had 
not made the inqulrtj la the way given hj this section can be taken for 
the first time in appeal. The point arises upon the Act, and the 
Judge is bound to take judicial notice of it.^ The D. A. R. Act 
makes it the duty of the Court to inquire into the history of the past 
transactions except under certain circumstances where tlie claim is 
admitted. Although, therefore, the plaintiff* m.iy not have asked the 
Sub-Judge to go behind the bond, it was still his strict right to 
have such an inquiry made and we think he was not too late in 
insisting on it before the Court of appeal with the view to support- 
ing the decree which was in his favour.^ 

The nature of the inquiry : — The Commission, appointed by 
the Bombay Govern'oaeut in 1875 to inquire into the condition of agri- 
culturists, thus enumerates the chief frauds which are practised : — 

By creditors : — ( L) Forging bonds, (2) withholding the con- 
sideration mentioned in the bond, (3) obtaining new bonds in 

(1) Dulichand v. Dhoudi, (1881) 5 Bom., 184 (Westropp, C. J. and 

Melvill, J.). 

(3). Vide remarks of Ghandavarkar, J. in Patlu v. Nam ; supra 
(3) See also 13 All., 304; Putaji v. Sadashiv, 1887 P. J. 211; 

(Sargent, G. J. and KanabhtU, J.), 



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64 Chapter III, s. 12. The nature of the inquiry. 

satisfaction of old bonds and of decrees and nevertheless enforcing tho 
latter, (4) not giving credit for payments, (5) refusing to explain or 
AvrongJy representing their acconnts to debtors. 

By debtors : — (6) Tendering in evidence false receipts and false 
evidence of alleged payment, (7) pleading that bonds are false when 
they are really genuine.^ These points will be useful in the conduct 
of the inquiry under this section. 

The inquiry is to be made, j^r^^, with a view to ascertaining whether 
there is any defence to the suit on the ground or fraud, mistake, 
accident, undue influence or otherwise on the ground of coercion^ 
misrepresentation, failure or want of consideration, satisfaction and the 
like, and secondly, with a view to taking an account between such 
parties. Under the section it is not necessary for the defendaut to raise 
any such defence; but whether such a defence is raised by the 
defendant or by the Court for him, the Court must before allowing it be 
satisfied that it is a valid defence according to the law of Contract and 
Evidence as applied to the particular circumstances of the case. 

A C^ourt inquiring into the history of a case under s. 12 is act 
intended to eke out by mere guesses a history which is defective ; 
the proper course is to start from the point where reasonable certainty 
begins.^ 

From the commencement of the transaction :— The 
word transaction here evidently refers to loan- transactions in 
general between a creditor and an agriculturist-debtor. Many of — 
such transactions may be of a very old standing ; for instance the 
relation of a creditor and a debtor may be subsisting between two 
families for generations together, and the loans advanced during the 
interval may not form part of one entire transaction, but may be sc 
many distinct and separate transactions. So in case a litigation were 
to arise and reach the Court, what the Court will have to determine 
in such cases seems to be, as to when the account of the transaction out 
of which the suit arose was first opened between the parties, or in 
other words when the consideration for the liability, on which the 

(1). Cited from Proceedings of the Supreme Legislative Council, Vol. 
XVIII, p. 134. 

(2). Mtthadu v. Rajaram, 1887, P. J. 216 (West and Birdwood, J J.). 



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Chapter III, s. 12. Commencement of the transaction. 65 

claim is based, was wholly or ia part first actofiJly paid to the debtor, 
and this will be done, notwithstanding any statement or settlement 
of account, or any contract purporting to close previous dealings 
and create a new obligation between the parties, Sawkars would 
generally be anxious to give to their transactions with debtors an 
appearance which will suit their own interest. We can imagine a 
case of a shrewd creditor putting forth a man who may advance in 
his own name a loan to the debtor whereby the latter would dis. 
charge his old debt, and upon closing the account with the debtor,, 
the same creditor may open a fresh account [of course after a lapse 
of some time] with a fresh advance to the same debtor to satisfy the 
intermediate liability to the new creditor. In such cases the Court 
will, it is submitted, go behind the deed and ascertain the bonafide 
and real cash transaction to begin with. 

If a distinct conclusion be come to that the consideration money 
for a particular bond sued upon was actually paid in cash and no 
part of it was applied in satisfaction of any previous obligation be- 
tween the parties, the transactions would be so disconnected from the 
previous transaction between the parties, as not to call for any 
inquiry into the history of the bond.i This would be in accordance 
with the spirit of the remarks made by the Court on the application 
of s. 13 in another case.^ 

In a redemption suit if the plaintiff is an agriculturist the 
Court is bound to go behind the mortgage bond and investigate the 
prior transactions between the mortgagor and the mortgagee.^ 

But in a case where the plaintiff, an agriculturist, who had 
executed in 1876 a mortgage for Rs. 350 under which Rs. 200 only 
had been received, induced the defendant to pay Rs. 350 to the 
mortgagee in satisfaction of his claim, and the latter executed an 
assignment of the mortgage to the defendant which the plaintiff signed 
held, that this transaction constituted the commencement of the 
transaction between the plaintiff and defendant, and that in taking 
the accounts under the D. A. R. Act the Court could not go behind it.< 



(1) Gopal V. Yfshwantrao, 1887 P. J. 273 (Sargent, C. J. & Nanabhai, J.). V\ 

(2) Mahadu v. Rajaram, 1887 P. J. 216. 

(3) Amarchand v. Lakshman, 1800 P. J. 220i(Bayley and Telang, J J.)- 

(4) Lakshman V. Maina, 1883 P.J. 320 (West and Nanabhai, JJ.) Here 
i£ the plaintiff had not b^en a consenting party, the position of the defendant 
would, it seems, have been different. 

9 



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66 Chapter III, s. 12, Commencement of the transaction. 

So also where the oontract; has been made the subject of adjudi- 
oation by the Civil Gonrt, and a decree has been passed, the contract 
is thereupon merged in the decree^ and s. 13 of this Act furnbhes 
no warrant for*tho revisioa of the decree and opening of the account 
between the agriculturist-debtor and his creditors from the com- 
mencement of the transaction, since a decree, though based upon a 
contract and giving effect to it in a particular way, is yet a very 
different thing from the contract.^ When a matter is referred to 
arbitration, and an award is made, the Court will file it without 
going into the history and merits of the case,^ — of course subject to 
the objections (if any) under Civil P. Code, that may be made to tho 
award. Moreover, having regard to the provisions of s. 13 it is not 
competent to a Cjonrt to go behind a decree passed in a suit instituted 
before the Act came into force and inquire into the history cf trans- 
actions settled by that decree^. 

Vide also note to s. 13 under the heading : " In the course of 
the transactions." 

" Transactions between parties : " — Where in a re- 
demption suit the plaintiff was an agriculturist, but the fiefendants 
were not agriculturists, held that the account between the parties 
referred to in s. 12 must be taken to be the account between the 
plaintiff and the defendants and not between defendants inter se 
neither of whom was an agriculturist,* 

"And the persons through whom they claim":— Section 12 
contemplates suits and accounts between persons who were represent- 
atives only of those who were parties to the original transactioru^ 

" In other cases : "-^In suits under this section the debtor 
may (0 dispute the creditor's claim or («) admit the same. In case (i) 



(1) Tatya Vithoji v. Bapu Balaji, (1883) 7 Bom., 330 (Wast and 
Nanabbai, JJ.). 

(2) Mohan V. Tukaram, (1895) 21 Bom., 63; (Farran, C. J. and 
Parsons, J.). 

(3) Goverdhan v. Yesu, 1882 P. J. 24 (Kemball and Piuhey, JJ.). 
Appaji V. Atmaram, 1882 P. J. 125. 

(4) Narayan v. Vithal, 1893 P. J. 191 (Candy and Fulton, JJ.). 

(5) Annaji Waghuji v. Bapnchand Jethi .Ram, (1883) 7 Bom., 250 
(West and Nanabbai, J J.) ; see the case noted under s. 2. 



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Chapter III, s. 12. Parties to transaction. 67 

the Court shall examine the parties unless it deems it unnecessary to 
do so and shall inquire into the history and merits of the case. In 
case (ii) the Ooart is nevertheless bound to inquire^ unless it believes 
the admission to be true and made by the debtor with a full 
knowledge of his legal rights as against the creditor. In oases where 
the debtor is an illiterate person and is not represented by a pleader 
the Court would generally examine him to ascertain whether the ad- 
mission made by him is as required by this section. Many nice questions 
would arise where (a) there are several defendants, some of whom 
are agriculturists, while others are not, or (b) where some of the de- 
fendants [all of them being agriculturists] admit the plaintiffs's olaim 
but the others dispute it. In the former case, it is olear that if an agri- 
culturist-defendant does not admit plaintiffs claim, an inquiry will 
be made under this section. But if the agriculturist defendant were 
to admit the claim, while the other defendants who are not agri- 
culturist were to dispute the same, it is submitted that there is room 
in the wording of the section to support the conclusion that the 
Court will be bound nevertheless to inquire. In the latter case, 
an inquiry is indeed essential. 

Burden of proof as to payment of consideration : — 

Although proviso 1 of s. 92 and s. 102 of the Evidence 
Act which correspond with cl. 1 of s. 9 of Reg. V. of 1827,i 
have not been similarly repealed, the intention of the Legislature 
in enacting this Act, clearly was to relieve the debtor of the 
necessity of proving failure of consideration, although admitted 
in the boiid on which Jje is sued, and the execution of which he 
admits.? Therefore in a suit on a bond against an agriculturist, if 
the defendant admits execution, the on u* is not on him of proving 
that he had not received full consideration. But the claim being 
disputed, it is incumbent on the judge to inquire into the history 
and merits of the case in the manner prescribed by sections 12 
and 13.3 



(1) Clause 1 of s. 9 of Kegulation V of 1827 runs thus;--'* Written 
acknowledgments of debt in any shape shall not be held conclusive in a^Court 
of law as to the amount, if the defendant shows that a full consideration has 
not been received." This clause has been repealed by s. 12 of this Act. 

(2) Maloji V. Vithu, (1885) 9 Bom., 520. (Sargent, C. J.& Bird wood, J.), 

(3) Panda v. Ganesh, 1885 P. J. 228, (Bird wood and Jardine, JJ.). 



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^ Chapter. Ill, s. 12. Burden of proof. 

Admission by agriculturist : — Seotioiis 12 and 13 
imperatively require the Courts to investigate the history of 
all transactions with agricnltarist-debtors withoxU regard to any 
admssians made by sudi debtors^ save in very exceptional cases 
and for reasons to be recorded by the Court in writing. Therefore, 
where an agriculturist mortgagor sued for an account and for 
redemption, admitting in the plaint that the land had been 
mortgaged to secure the payment of three sums advanced at different 
times, it was held that the Court was bound to inquire not only into 
the amount, but also as to the nature of the obligation, that it was 
not right for the Court to accept as a charge on the land an item not 
proved to have been advanced on the security thereof.^ 

In a case the Subordinate Judge in taking evidence did not 
<leal with the admission of the defendant in his written statement 
AS to tlie receipt of a certain amount. In the District Court, the point 
was taken that the accounts were not properly taken ; but the 
District Judge wrote, " plaintiff now wants to rely on defendants' 
admission. This is abandoning his own case, and he cannot do this 
and rest his own case on defendants' admission without amending 
the plaint. And the defendants have not admitted receipt of cash," 
^. Held^ that this was not an examination of accounts taken under 
the D. A. B. Act, and not an adjudication on the evidence and the 
pleadings of the parties, no reasons being given for the opinion that 
defendants had not admitted receipt of casL^ 

Arbitration : — The section does not affect the rights of the 
parties to refer any matter to arbitration. And when a matter is 
referred to arbitration and an award is made the Court will file it 
without going into the history and merits of the case,' 

Mode of taking account. 

Scope of section 13 ; — Section 13 principally aims at (1) 
disallowing compound interest, (2) setting off profits, service, 
and other advantages, (3) opening up of settled account, (4) 
and introducing the rule of Damdupat. 

(1). Bhau V. Antaji, 1884 P. J. 77. (Kemball and Birdwood, J J.). 

(2) Krishnaji v, Sambhu, 1892 P. J. 280 (Bayley and Candy, JJ.). 

(3) Mohan V. Tukavam, (1895) 21 Bom., 63. cited under s. 47 and s. 1-3. 



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Chapter III, s. 13. Mode of taking accounts. 69 

(I) Disallowing compound interest: — The Court is not 
bound in all cases to award even simple interest. Grenerally 
iihe Court would allow simple interest under this section, (i) when 
it is provided for under the contract, (ii) when the parties are in 
law or equity entitled to claim it. It is in the discretion of the Court 
to regulate the rate of interest under s. 71 A.i 

Although the Court can go behind a given settlement of 
account, it will not do so when the settlement is in the form of an 
award passed by an arbitrator or of a decree passed by a Court 
determining the rights and liabilities of the parties ; and interest may 
begin to run on the amount so determined in the award or decrees 
comprising of principal and interest to which the creditor will be 
considered as entitled ; thus practically compound interest on the 
original principal may be obtained by the creditor. 

(II) Setting off profits &c.:— Under this Section a 
usufructuary mortgagee otherwise entitled to retain the profits of the 
mortgaged property without account in lieu of interest, will have 
to account for the profits obtained by him. The rights and liabili- 
ties of the mortgagee in possession are determined by ss. 72 and 76 
of the T. P. Act ; bat where the provisions of that Act are in- 
consistent with those of this Act, the provisions of the latter are 
saved by s. 2, cl. (a) of the former Act.2 It has been held in 
some cases [which have, of course, nothing to do with D. A. R. Act} 
that a mortgagee, who, instead of letting the land to ryots and 
realizing the rent in the ordinary way, cultivates it himself, is not 
responsible for the whole of the profits arising to him by farming 
the land but only such profits as he would have realized had he let it 
to a tenant.^ 

Tha word profits in cl. (f) of s. 13, must mean net profits.* 
It would be very much easy to determine the profits arising from 
land, but it would be very difficult to put any money-value upon 
services and other advantages received by the creditor in the course 
of a transaction under consideration. Generally, a creditor holds a 
sort of superiority over his debtor who is always at the beck and 



(1) Head the note on interest under that Section, 

(•2) Bhagavan v. Ganu, 23 Bom., 644, (1 Bom. L.R., 136), per Ranade, J. 

(3) Raghoonath v. Giresdhari, 7 W. R. 244. 

(4) Baburao v. Vishnu, 1885 P. J. 81. 



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70 Chapter III, s. 13. Mode of taking accounts. 

call of his Sawkar — anxious to please him by offering his ser.vices 
to him. And it is evident that these services and like advantages 
are to be given credit to in money-value when adjusting the 
accounts under thisseotion, although this might not be in con- 
templation of the parties when the services were rendered or the 
advantages received. The ascertaining of the money- value of such 
ti vague thing as advantages of every description must necessarily 
be arbitrary only. And it is good that the Legislature, while 
repealing s. 15, sanctions the Court to take the aid of arbitrators in 
ihe determination of such matters under this section. 

Clauses (e) and (f) — of the section provide how the account 
of interest is to be made up and clause {g) tells us how the 
tunount due at the date of instituting the suit is to be ascer- 
tained.^ Each payment by way of profits or otherwise must be set 
off in the first place against interest due on the debt at the date of 
payment and the balance only, if any, against the principal then 
due.3 

Accounts after suit : — Accounts should not be taken upto 
a date subsequent to the institution of the suit,^ 

Account not to be taken on assumption : — ^The judge 
is not justified in assuming without evidence that one half of the 
sum stipulated in the final bond as representing old books 
constituted the original advance and one half interest thereon.* 
In a redemption suit under this Act, the Court should, in taking 
an account, form its. own opinion on the subject. As the law 
stands, a mere guess as to the sum of money actually advanced 
cannot be made in favour either of one side or the other.^ 

Where plaintiff sued an agriculturist on a bond, held^ that there 
-was no principal which enabled a Court to determine how much was 

(1) Raincbandra v. Tukaram, 1885 P. J. 142 ( Sargent, C. J., and 
l^anabhai, J.), 

(2) Ramchandra v. Hari, 1884 P. J. 89 (Sargent, C. J. and Nanabhai,J.). 

(3) Apa V. Gopal, 1889 P. J. 157 (Sargent, C. J. and Candy, J.). 

(4) Vithal V. Mahadajee, 1888, P. J. 71. (Birdwood and Parsons, JJ.). 
(5) Dhondi v. Lakshman, (1894) 19 Bom., 553 (Bayley, Ag. C, J. and 
Fulton, J.); Mahadu v. Rajaram, 1887 P. J. 216 considered ; Maloji v. Vithu> 
<1885) 9 Bom., 620, referred to. 



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Chapter III, s. 13. Mode of taking accounts. 71 

principal and how much interest ; that there was no presumption 
that half was principal and half interest, though from the existence 
of the rule of Danidupat it may be inferred that the creditor w^oald 
not have allowed interest to accumulate in excess of the principal 
sum before requiring a fresh bond from the debtor ;^ iiiat in soch 
cases the Judge must draw his own inference after exhausting all 
particular means of inquiry. If possible, it (Court) will ascertain 
the date approximately when the transactions giving rise to the bond 
sned upon began, and from the course of the later dealings between 
the parties may infer the character of the earlier. It will draw all 
proper presumptions from the non-production of the books of ac- 
counts by the defendant, whom the Act seems to contemplate as the 
primary source from whom inquiry is to be made (Chap. IX). But 
when by reason of the antiquity of the transaction or other causes no 
presumption can legitimately be drawn against the defendant we are 
inclined to think that the Subordinate Judge cannot act upon the 
ruling in Krishnajl v, Yeshvaiitrao ;^ but we cannot lay it down a» a 
rule binding upon him.'^ He will of course bear in mind the pro- 
visions of s. 13 cl. {(() in applying that ruling."^ 

Annual rests : — It is obligatory upon the Court to take 
accounts direct'^d by the D. A. R. Act, which requires annual 
rests ;^ and this not being done, the decree was reversed and the 
case sent back to the Lower Court to take accounts according to 
the Act.6 

"j In the course of the transaction'* : — When a mortgagee 
opens up his account in the name of his mortgagor, he generally 
takes care simultaneously to open several khatas in the name 
of his debtor; and eventually so many relations are created. 
For instance, the relation of mortgagor and mortgagee originates 
with the deed itself to which may also be added another relationship 

(1) Mahadu v. Hajaram, 1887, P. J. 216, referred to. 

(2) 1887 P. J. 214. It is submitted tbis reference should rather be to 
P. J. 216, cited ante. 

(3) See Dbondee v. Lakshman, 19 Bom., 553. 

(4) Ganesh v. Hari, 1895 P. J. 373, (Farran, C. J . and Parsons, J.). 

(5) The section itself says nothing of annual rests ; see cl. (e) of the 
section. 

(6) Hanmant Kamchandra v. Babaji, (1891) 16 Bom., 172, (Sargent, 
0. J, and Candy, J.). 



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72 Chapter III, s. 13. Mode of taking accounts. 

by the mortgagee subsequently taking a bond for the balance of 
interest on the mortgage. So also a relation of landlord and tenaat 
may arise [in some cases] if the mortgagee leases the mortgaged 
property to the mortgagor. With so many transactions in hand, the 
mortgagee may without contest get decrees in respect of the 
amounts due under the lease and interest-bond, the debtor all along 
believing that his payments must have been credited to the 
mortgage-account. And thus when after a long interval a spU is 
brought upon the mortgage, the plea of satisfaction is raised for the 
first time. In making an inquiry and taking accounts in such a 
suit it becomes very difficult to ascertain the actual payments to the 
mortgagee. Indeed in taking accounts in respect of the mortgage 
all the above transactions will have to be taken into consideration, 
so that a proper conclusion may be reached. 

Where, however, parties have entered into several distinct 

transactmiSy payments or even overpayments made by the debtor in 

one transaction will not be given credit to in the other transaction. 

What the Court has generally to see is whether the transactions are 

really distinct or whether they are so made to defraud the debtor. 

So in taking accounts under the Act, of mortgages, between the 

same parties, which are essentially distinct contracts, as when the 

interest in one is to be paid out of the profits, while in the other it 

is to be paid in cash, and the amount is payable in 5 years in one 

case and in 4 years in the other, as soon as the prior bond is found 

to be paid ofiF. out of the profits, it would not be necessary to take 

further accounts, under the Act, of that bond; but the account of the 

subsequent bond must start fresh from its date, so that the latter 

cannot be held to be liquidated either wholly or in part by profite 

lawfully received prior to its date. To hold so would be to oblige 

the mortgagee to refund money which had rightly come into bis 

bands under the former contract.^ 

A lent B Bs. 150 for which B gave him a bond, dated 6th 
July, 1872. Of this loan Ks. 100 were advanced on the mortgage 
of certain land, and the bond contained the terms of the mortgage, 
one of which was that the profits of the land were to be taken by 

(1) Vtehnu Keshav ▼. Satwaji Tulaji, 1897, R J. 87, following Janoji v. 
Janoji, (1882), 7 Bom., 185. 



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Chapter III, s. 13. Mode of taking accounts. 73 

the moHgagee in lieu of interest on the fis. 100. The remaining 

]^ 50 of the loan unsecured by the bond were made repayable with 

componnd interest at Re. l>8-0 per cent, per mensem. The bond 

farther provided that the mortgage should not be redeemed until 

ihe latter sum of Rs. 50 with interest should be paid off. 6 sued 

for redemption of the mortgage. The first Ounrt found that the 

mortgage had been pai \ off, an 1 ordered redemption on the plaintiff 

paying Ks. 50 with interest, which under the rule of ddmdupat 

increased the amount to Rs. 100. The plaintiff applied to the 

Special Judge for review on the ground that he had alrcAily paid 

the Rs. .50. The Special Judge did not review the case on that 

groQnd, but acting under t!ie power given him by sections 53 and 

54 of this Act virici the decree by ordering redemption on 

payment of Rs. 50 only, holding that as the mortgage had been 

long since paid out of profits, the balance of such profit* shou'd be 

applied to payment cf the interest due on the Rs. 50. On appeal 

to the High (Jourt, held^ that the Uoarts while inquiring into the 

merits of a case ualer sjction 12 o£ ths Act had authority under 

sectioa 13 to tre it the original advance of Rs. 100 and Rs. 50 as a 

^ngle transaction and tt» set aside the agreement of the parties to 

treat i*urt of the loan a^ a mortgage-loan and part as an unsecured 

loan, and to deal with the whole case [as in substance it was] as 

an advance on a mortgage.^ 

L mortgaged certain lanJs to D in the year 1847 for Rs. 150 
carrying interest at 27 [)or cant, and M became siiri(;y for hini. It 
was agreed th it if L did not p ly the money when demanded by D 
M shpnld piy it, an I hiving thus redeemed Ihe land, take possession 
of it. In 187G, the mortgagee hiiving demanded the money, M 
paid him Rs. 4j0, that were found due and took possession of the 
land. In a suit brought by L against M for redemption, it was 
argued on behalf of L th it, as II Wcis an agriculturist, accounts should 
be taken from the date yi the mortgage, under s. 13 of the Act and 
that if only 12 p. c. interest was allowed less than Rs. 400 would be 
found due on the mortgage in 1876, that of the Rs. 400, only 
Rs. 150 represented the principal money and the rest, accumulation 
of interest; that no interest should be allowed on the latter. That 

1. Bulkiishna v. Wahadev, (1896) 22 liom., 5*^0. (l^arraua, C. J., and 
HoskiDg, J.). 

10 



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74 Chapter III, s. 13. Mode of taking accounts. 

as M subrogated into the rights of the creditor and there was no pro- 
vision in the deed for making rests, and as nothing was agreed 
about interest between plaintiff and defendant, under Regulation V 
of 1827, s. 15, profits should be set off against the interest and that 
there should be no foreclosure clause in the decree. Held, that M 
was not a transferee of the mortgagee, that the transaction between 
L and M, within the contemplation of s. 12 and under which M 
claims to hold the land, arises out of the implied agreement at the 
time of the mortgage, that L would indemnify M for whatever sum 
he might ha ve to pay as surity ; that the property, therefore, re- 
mained with M as a security for the entire sum of Rs. 400 and inter- 
est; that Regulation V of 1827 was not applicable to a case of 
principal and surity.^ 

Calculation of interest^ : — Where a mortgage-deed provided 
for the re-jtayment of the principal amount, Rs. 100 and 
interest thereon at 2 per cent, per mensem, within 4 months, and 
contained the following provision : *' You (the mortgagee) are to 
pay the Government assessment and local-fund-cess for the said 
piece of land and to receive the income thereof. And should any- 
rent be received in respect of the toada the same is to be received 
by you as profit and you are to receive the income of the said piece 
of land in lieu of the government assessment ; " Held^ that there 
was nothing in the mortgage-deed which led clearly to the con- 
clusion th it the mortgagee, was to receive for his own benefit more or 
less than tho principal sum and interest at 2 per cent, per mensem, 
four months from the date of the bond ; nor was there any stipula- 
tion expressed or implied that the account between the mortgagor 
and mortgagee should not be taken in the ordinary manner and, 
therefore, s. 13, cl. 2 of the D. A. R. Act applied. Independently 
of this Aet, it would not be imperative on the Court, taking the 
account, to give interest on such bond at the rate of 2 per cent, per 
mensem, for more than 4 months from the date of the bond. 
Should the Court think that rate too high, it might, if the principal 
money remained unpaid after four months, direct the payment of 
such lower rate of interest for the period subsequent to the 4 months 
as might be just, and which would usually be the Court rate.^ 

(1) Lakshman v. Malhar, 1886, P. J. 191 (Sargent, C. J. & Birdvvood, J.). 

(2) Hecid note on Interest under s. 71 A. post. 

(3) Kashinath v. Ambaji, 1881 P. J. 74, (Westropp, C. J. and Nana- 
bhai, J.). Read tbe note on interest under s. 71 A. 



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Chapter III, s. 13. Mode of taking accounts. 75 

Agriculturist mortgagor not entitled to a refund : — 
The plaintiff, an agricalturisfc, sued (as mortgagor) for accouat 
and redemption of the mortgaged property under the D. A. R. 
Act ; the defendant pleaded that, by the terms of the mortgage 
bond he was not bound to account, and that s. 12 of the Act 
did not apply. The Subordinate Judge overruled the objection, and 
on taking account, found a balance due from the defendant to the 
plaintiff* He accordingly, made a decree in favour 6f the plaintiff 
for the land and the amount. The District Judge confirmed the 
decree of the first Court. Held that the decree of the lower CV)urt^ 
xanst be varied by omitting the direction ordering the defendant to 
pay the balance to the plaintiff. In a suit for account and re- 
demption, if the mortgagee, on taking the accounts, is found to have 
Y>oen overpaid, the general practice is to order the payment by him 
of the balance due to the mortgagor with interest from the date of 
the institution of the suit. The application of the above rule, how- 
ever, in redemption-suits instituted under this Act, in cases where 
the terms of the mortgage contract between the parties are set 
aside for the purpose of taking the account under the provisions of 
&• 13 of the Act, would not only lead to the redemption of the 
mortgaged property contrary to the terms and conditions of the 
contract, but would, in many cases oblige the mortgagee to refund 
the money which rightly came into his hands under the contract. 
There is no express provision in the Statute either directing or en- 
abling this to be done ; and remembering that the Act encroaches on 
existing legal rights it should on legal principal, not be construed 
to extend beyond the particular object which the Legislature had in 
view in passing the Act. That object as expressed in the preamble 
is effected when the agriculturist is enabled to discharge his debt 
and recover his land on far easier terms than those which he has 
contracted for, and it would be going beyond that object, if the Act 
. were construed to entitle him also to a refund of money which had 
already properly come into the mortgagee's hands under the con- 
tract.^ 

(1). Janoji V. Janoji, (1883) 7 Bom., 185. (Sargent, C. J. and iXanabhai, 
J.}, followed in Bamcbandra Baba Satbe v. Janardan Apaji, (1889) 14 Bom., 
19 (Sargent, C. J. and Nanabhai, J.), Vishnu Keshav v. Satwaji Tulaji, 
1897 P. J. 87, (Parsons and Tyabji, JJ.). 



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76 Chapter III, s. 23. Mode of taking: accounts. 

In another case where, by two separate mortgages certaia lands 
were mortgaged in 1830 by the plaintiff's father to the defendant. 
In 1882 the plaintiff as an agricaltrist brought the present sait for 
redemption of the lands comprised in both mortgages. Heldy that 
separate account of the two mortgages should be taken. The 
mortgages were distinct transactions relating to different lands, and 
section 13 contains no words enabling the Court to treat them as one. 
The fact of their being included in the same suit could not affect the 
question. In taking the accounts of the above mortgages there was a 
sum of Bs. 5075-13-2 due to the plaintiff- mortgagor by the defendant- 
mortgagee, and, on the other mortgage, a sum of Rs. 3774 2-7 due 
to the defendant mortgagee by the plaintiff mortgagor. The plaintiff- 
mortgagor contended that, although by the ruling in Janoji v. Janc/fl 
he could not compel payment of the Bs. 5075-13-2 due to him 
On the one mortgage, he was entitled to have so much of it 
as might be necessary to sot off against the Bs. 3774-2-7 still 
due by him on the other mortgage. Heldy that on the 
autority of Janoji v. Janoji^ the plaintiff had no legal claim 
to the Rs. 5075-13-2, and, that being so, the existence of the balance 
in his favour on account of one mortgage could not be treated as 
extinguishing the claim of the defendant to the Rs. 3774-2-7 due 
on the other mortgage. The plaintiff as an agriculturist-mortgagor 
was enabled to free his land from both the mortgages on the favour- 
able terms provided by the D. A. B. Act, but was precluded from 
compelling the mortgagee-defendant to refund what the latter had 
personally acquired under the terms of his contract of mortgage.^ 

When suit for account is the proper remedy :— The 
plaintiff sned an agriculturist on a bond to secure the payment of the 
price of grain and the interest due on a mortgage bond given to secure 
an old debt. Beld^ that having regard to ss. 12 to 14, the suit was 
not sustainable as brought, but that the plaintiff should be allowed 
to amend his plaint by seeking an account of what was due on his 
mortgage, and for such relief by way of foreclosure or sale as he 
might to entilled to.^ 

(1) Ramchandra Baba Sftthe v. Janardhan Apaji, (1889) 14 Bom. 
19. (Sarcrent, 0. J. atid Nakiabhai, J.). 

(2) Dipchand v. Kashi, 1881, P. J., 116, (Westropp, C. J. aad 
Piiihey, J.). 



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Chapter III, ss. 14 and 15. Old law. 77 

14. (Interest to be ^QVt^A^—Repealed by 

^ct VI oj 1895, s. 3. 

Old Law, 

The repealed section 14 was:— 
T&terest to be allowed — Tl^e interest to be awarded in taking an accoaat 
acoordiag to ths raies sat fortli iu s. 13 shUl bd — 

(a) The rate, if any, a«?reed upon between the parties, or the 
persons (if any) through whom they claim, unless such rate U 
deemed by the Court to be unreasonable ; or 

ip) If such rate is deemed by the Court unreasonable or if no rate 
was agreed upon, or, when any agreement between the parties, 
or the persons (if any) through whom they claim, to set off* 
profit without an account in lieu of interest has been set aside 
by the Court, such rate as the Court deems reasanable. 

JT. jB.— -These pro visioQS have been practically reproJaced by 
the same Ameniing Aot ( Viof 1895)in s. 71 A of this Aot. 

15. (Reference to arbitration in certain 
cases.) — Repealed by Act VI of 1895^ s. 3. 

Old Law. 

The repealed section 15 ^\^a8 : — 

Reference to arbitration in certain oases:— Instead of inquir- 
ing into the history and the merits of a cise under s. 12, or if, 
upon so enquiring, the Court is unable to satisfy itself as to the 
amount which should be allowed on account of principal or 
interest, or bath^ the Court may of its own m jtiun, direct that 
such amount be ascertained by arbitration. 

If the parties are willing to nominate arbitratorsi the arbitjators 
shall be nominated by them in such manner as may be agreed 
upon between them. 

If the parties are unwilling to nominate arbitrators, or can not 
agree in respect of such nomination, the Court shall appoint 
any, three persons it thinks fit. 

Provided that, if all the parties reside in the same village, town, or 
city, and, in the opinion of the Court, three fit persons can be 
round among the residents of such viila^, town, or city, it 
shall appoint residents of such village, town^ or city. 

The provisions of sections 508 to 522 (both inclusive) of the Code 
of Civil Procedure shall apply to every reference to arbitration 
under this section. 



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78 Chapter III, ss, 15 and 15 A. 

Commentary. 

Case under the repealed section : — Where a suit is 
brought upon a bond the execution of which is admitted by the 
defendant, no strict rule can be laid down, as to the party upon whom 
the burden of proof rests. If the ^parties adduce no evidence, the 
Court must be content with the evidence of the parties themselves, and 
endeavour, in the language of s. 15 of the Act, to " satisfy itself."^ 
If it raunot satisfy itself as to the amount which should be allowed 
on account of principal or interest, or both, it may, under that 
section, direct, of its own motion, that such amount be ascertained 
by arbitration.^ 

The right of parties to refer to arbitration is saved by s. 12, last 
para« See, also s. 13 oK (f). 

[a] 15A. Mortgagor entitled to decree for 
redemption though time fixed by mortgage has 
not arrived or debt has not been paid :— In a suit 
of the description mentioned in section 3, clause (2') , 
the Court shall not refuse to pass a decree for re- 
demption merely on the ground that the time fixed for 
the payment of the principal of the mortgage-money 
has not arrived, or on the ground that the mortgage debt 
ha^ not been completely discharged, or on both. 

Commentary. 

The object of the Section : — ^The provision that redemption 
snits are not to be dismissed as premature merely because the time 
for redemption as fixed by the mortgage has Dot arrived, appears 
essential, in order to give fall eflFect <o the provisions of ss. 12 to 14 
of this Act, which empower the Courts to set aside the terms of the 
agreement between a mortgagor and mortgagee and declare the 
mortgage debt paid off whenever the mortgagee has received the 
amount of his advance with reasonable interest thereon.^ 

[a] S. 15 A. was inserted by Act XXII of 1882, s. 6. 

(1) Maloji 8antaji v. Vithu Hari, (1885) 9 Bom., 520 (Sargent, C. J. and 
Birdwood, J,) see also Dhondi v. Lakshman, (1894) 19 Bom., 553 (Bayley, 
Ag. C. J, and FultoD, J.). 

(2) Statement of Objects and Reasons ; (Amending Act XXII of 1882.) 



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Chapter III, s. 15A. The usual contentions. 79 

The usual contentions — ia a redemption-suit particularly 
on a mortgage by oondifcioaal sale, are (1) that the deed sued upon h 
really a deed of sale with a condition of repurchase attached to it and 
(2) that the suit is premature it being agreed between the parties 
that the mortgage is not to be redeemed within a certain term. 
How far these contentions will he upheld will be clear from the 
following cases. 

Construcion of the document : — In a case ia consideration 
of a debt due by the plaintiff to the defeudant, the latter was to take 
possessisn of certain land for tea years and appropriate the income 
thereof in liquidation of the debt, and that after the expiry of 
the said period the right, to the land was to cease ; the deed waa 
headed "mortgage-deed with possession regarding land." Before the 
expiration of the ten years the plaintiff brought this suit for 
redemption and possession, alleging the transaction to be a mortgage, 
Heldy that it was a mortgage and that the plaintiff was eutibied to 
redeem even before the expiration of the mortgage term of tea 
years. On the point of construction the High Court remarked :— • 
" The case must therefore be decided on a consideration of the doca- 
ments themselves with such extrinsic evidence of surrounding 
circumstances as may be required to show in what manner the 
language of the document is related to existing facts. • . ll: is difficult 
to believe, when the parties deliberately designated the transaction as 
a mortgage, they did not believe themselves to be clothed with all <he 
rights and remedies incidental thereto. When the terms are as 
clear as they are in this case, it seems a wanton exercise of ingenuity 
to wrest the terms of a contract from its true ccmstruction to one to 
which the parties never intended to apply.''^ 

Time fixed immaterial : — Under this section a decree for 
redemption can be passed even though the time fixed for the re- 
payment of the principal of the mortgage money has not arrived .2 

Under this Act an agriculturist mortgagor may sue for account 
and possession of mortgaged property before the time iix^jd in the 
mortgage-deed for the payment of the inert gage-debt, on the ground 



(1) Tukaram v. Raii)chawlr», (1901) 26 Born., 252 F. B. (Jenkins, C. J. 
and Fulton, Crowe and Chandavarker, JJ.)- This point is considered at length 
at pp.' 4:1-43 aute. 

(2) Malapa v. Shainji Naiic, 1897 P. J. 49 (Parsons and Ranade, JJ.). 

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80 Chapter III, s* isA. Time fixed immaterial. 

&at tbe debt has been satisfied. Any agreement between tbe 
parties by which tbe mortgagor is compelled to remain in die 
mortgagee's debt for a definite period pro tanto frustrates the object 
-which tbe Legislatare had io view. It would be straining the 
language of the Act to hold thai the time fished for payment is an 
agreement determining the manner of taking the account under 
8. 13. The rule of law that the right to redeem is coextensive 
with the ri^ht to foreclosure and consequently postponed nntil the 
time ftsed for the payment of mortgage debt, does not apply to cases 
falling under this Act.^ 

#ecree for possession before debt is paid off:— The Court 
lias a power to place the mortgagor suing for redemption in pos* 
flession of the mortgaged property before the debt is paid c£ Tbe 
words decree far redefinition must be construed as meaning a decree 
awarding possession to the mortgagor, for otherwise, the provision 
would be unnecessary and meaningless.' 

Effect of an agreement in variance witt^^is section :— 
An agreement between mortgagor and mortga|:ee to theeffect that the 
latter should hold the land for 20 years in satbfaction of the 
mortgage-debt, offends against the spirit of this section by virtually 
providing for principal and interest not being paid off for 20 years, 
and therefore it should be disregarded and the amount due on 
the mortgage determined under s. 13.^ 

Thus in a case where in December 1870, A, an a|.,'ricultnri8t, 
mortgaged hb land to B for Rs. 600. Twenty years, usufruct of the 
land was to extinguish the mortgage. In 1888 there was a further 
oharge in favour of B of Rs. 90. While in possession B had to spend 
Sfl. 225 for repairs, &c. It was verbally agreed in August 1890 that 
8 more years usufruct was to be enjoyed in consideration of the said 
Bs. 225. In 1892 A sued to redeem the mortgage of 1883 and to 
recover possession, as the debt was already paid off. Held^ that the 
debt of Bs. 225 was a mortgage-debt by virtue of the mortgage of 
1870, that the term of 8 years should be disregarded and that an 

(1) Balaji v. Vithu, (1£82) 6 Bern. 724 (8a) gent, C.J. and Kemball, J.). 

(2) Kieandas v. Muklabai, 1888 P. J. 287 (Birdwocd and Parsona, JJ.). 

(8) M^Ll| atrao v. Gambiimal, 1886 P. J., I4l (Sargent, C. J. and 
Birdwood, J.). 



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Chapter III, S; isA. Time dyttd immaterial. 8t 

acconni of the mortgage for Bs. 225 shonid be taken, if A is willing 
to atnead his plaint, and shoald be asked to redeem that as well as the 
mortorage of 1883 ; and th^t the profits after satisfying the debt of 
Rs. 225 shonid be applied in reduction of the debt of Rs. 90.^ 

But where a mortgagee has been placed in possession in 
pursuance of an agreement between the parties which is filed, under 
s. 44 or in terms of which an award has been filed, or where he is so 
placed in possession by the Court under the provision of this Act^ 
evidently the mortgagor will not be entitled to redeem within the 
time during which the morfcgagee is to to remain in possession 
nnder the new arrangement.^ 

But in a case where in 1888 one Dhondi and his eldest son 
Bala mortgaged certain ancestral property for Rs. 1,500. In 1890 
Dhondi alone came to an arrangement with the mortgagee by which 
it was agreed that the mortgagee should enjoy the income of the 
mortgaged property till 1900 A. D. in full satisfaction of the 
mortgage-debt, xbis agreement was filed in Court under section 44 
cf this Acton 4th April, 189 L, when it took effect as a decree. In 
execution of this decree the mortgagee sought to attach the property 
mortgaged. Dhondi having died in the meantime, his sons objected 
to the attachment on the ground that the decree was fraudulent and 
collasive. But this objection was disallowed by the Court, and the 
property was attached. Thereupon Dhondi's sons filed a suit fox 
redemption of the mortgage of 1888. Defendant pleaded that the 
mortgage was merged in the agreement of 1890, and that the 
plaintiffs had no riuht to redeem. Beld, that the agreement was 
not binding ui)on the plaintiffs. By the agreement the right to 
redeem the mortgage before its fixed i)eriod under the provisions of 
section 15A of this Act ceased and the right to the surplus profits in 
the hands of the mortgagee over and above the mortgage-debt was 
also lost, without any countervailing advantage or benefit. Such 
an agreement by a Hindu father is not binding on his sons in 

(1) Babaji v. Maniram, 1894 P. J. 37 (Sargent, C. J. and Candy, J.), 
Mabipatrao v. (jambirmal, 1886 P. J. 141, followed. 

(2) Ramohanilra v. Kondaji, (1896) 32 Bom«, 221 ; (Farran, 0. J, an4 

Fulton, J.). 
U 

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$2 Chapter III, ss. 15A and zsAA. 

respect of ancestral property. It amounts, pro tanto to an alienation, 
by him, of the ancestral estate without consideration. Ueld^ also, 
that as the agreement was not binding upon the plaintiffs, the 
decree against their father based upon the agreement was also not 
binding upon them.^ 

Also in a case where S. mortgaged a field and a house to A, 
the mortgage-deed stipulated that on S's failure to pay principal 
and interest due at a specified time, A was to take possession. 
Upon default, A obtained a decree directing recovery of a certain 
sum as principal and interest found due upto that date and in 
default of S to pay the same, to recover possession. A entered 
into possession under the decree, S having brought subsequently a 
redemption suit, held, that the decree did not change the relation* 
ship of mortgagor and mortgagee between the parties as there was 
no gahan lalian clause in the mortgage and A bad sued for possession 
and not for foreclosure. Ileld^ also, that the account taken in the 
suit could not be disturbed but that in other respects the rights of 
the parties were not affected by the decree. The account should be 
taken from the date of the first decree according to sections 13 and 
14,oftheD. A.R. Act.3 

[a] 15AA. Power of Court to name some 
future date for payment by the mortgagor :— 

So far as it may be consistent with the provisions of this 
Act, every decree for redemption or foreclosure of any 
mortgage, and every decree or order for the sale of any 
mortgaged property made at the instance of a mortgagee 
thereof, shall name such future day, not being less than 
six months after the date of such decree, as the Court 
may think reasonable for the payment by the mortgagor 
of the money payable under the decree, and no such 
foreclosure shall be made absolute nor shall any such 
sale take place before the day so named. 

r__ ■ -.. ... -. i . I .1* 

(1) Bala V. Balaji, (1897) 22 Bom., 826 (Farran, C. J., and Candy, J.). 

(2) Bftttatraya v. Anaji, 1886, P. J. 237 (Sargent, C. J. & Birdwood, J.), 
(a) 8, 15AA was added by Act VI of 1895, s. 8, 



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Chapter in, 8. X5AA. §3 

Commentary. 

In a oase^ decided before this section was introduced it was held^ 
that when a decree ordered payment of the entire debt foand due to 
be made within a fixed period, there was nothing in the D. A. R. Act 
"which could justify the omission of the ordinary direction for fore- 
closure in default of payment. It was observed : — *' The Act only 
provides for the account between the mortgagor and mortgagee in 
redemption suits being taken in a particular manner, but is silent as 
to the force of the decree beyond allowing the judge to direct 
payment by instalments." The decree for foreclosure or sale will 
have to be drawn in accordance with ss. 86 and 88 of the T. P. Act, 
except when the advantages under s. 15B and the like are to be 
given therein. And in another case it was held that in a redemption- 
suit by an agriculturist mortgagor, the only decree which conld be 
made, in the absence of any special provision in the Act, was the 
ordinary decree for payment of the whole amount,^ within 6 months 
or, lu default, for foreclosure.^ 

Where B obtained a decree on iilst July 1882 in redemption- 
suit directing him to pay a certain sum to the mortgagee within one 
year or the mortgage to be foreclosed. Before the year expired, 
B applied for an order to be allowed to pay the redemption-money by 
instalments under the D. A. R. Act, which was granted. On appeal 
that order was reversed and the judgment concluded as follows : — 
** The original decree must stand, and the defendants are to be 
allowed to apply at once for payment of the sum originally decreed; 
if not paid at once, the mortgage is to be foreclosed." B having not 
paid till the I5th January 1884, the mortgagee presented a 
darkhast for foreclosure on tliat date, when B paid the redemption^ 
money. Ileld^ that the effect of the order above quoted was to 
postpone foreclosure until there had been default of payment on 
demand, and as there had been no demand and default, before the 
niortj^agee presented his darkhast on 15th January 1884, the 
payment by B then was not too late.'^ 

(1) Abaji V. Ganu, 1889 P.J. (Sargent, C. J. and Candy, J.). Laksh- 
man v. Malhar, 1886 P. J. 192. 

(2) S. 15B wag not enacted when this case was decided, 

(3) Shaukarapa v. Dauapa, (1881) 5 Bam., 604 vWestropp, C. J. and 
Melvill, J.). 

(4) Babajee v. Laksbman,l887, P. J. 83 (Sargent, C. J. & Nanabhai, J.). 

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84 Chapter IIIi s. Z5B. 

[*] 15B. Power to order payment by in- 
stalments in case of decree for redemption, fore- 
closure or sale :— (l) The Court may in its discretion 
in passing a decree for redemption, foreclosure or sale 
in any suit of tlie descriptions mentioned in section .^, 
clause (j/) or clause (2"), or in tlie course of any proceed- 
ings under a decree for redemption, foreclosure or sale 
passed in any such suit, whether before or after this 
Act comes into force, direct that any amount payable 
by the mortgagor under that decree shall be payable in 
such instalments, on such dates and on such terms as 
to the payment of interest, and where the mortgagee 
is in possession, as to the appropriation of the profits 
and accounting therefor, as it thinks fit. 

(2) If a sum payable under any such direction is 
not paid when due, the Court shall, except for reasons 
to be recorded by it in wnriting, instead of making an 
order for the sale of the entire property mortgaged or 
for foreclosure, order the sale of such portion only of the 
property as it may think necessary for the realisation 
of that sum. 

p] (3) Power to continue the mortgagee in 
possession : — In passing a decree for redemption or 
foreclosure in any such suit as aforesaid, the Court may 
direct that the amount payable by the mortgagor shall 
be discharged by continuing the mortgagee in possesion 
for such further period as will enable him to recover his 
principal with reasonable interest, and that on the 
expiry of such period the property mortgaged shall be 
restored to the mortgagor. 



[a] This section was inserted by Act XXII of 188*2, 9. 6. 

[b] Sub-section (3) was added bj Act VI of 1896, s, 9. 



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Chapter llh Scope of s. zsB. 85 

[*] (4) When the amount payable to a mortgagee 
in possession has been determined in any such suit as 
aforesaid, the Court may in its discretion, instead of 
making an order for payment thereof, direct that the 
mortgagee be continued in possession for such period 
[to be specified by the Court] as will in the opinion of 
the Court be suflScient to enable him to recover from 
tlie profits the amount payable by the mortgagor to- 
gether with reasonable interest, and that on the expiry 
of such period the property mortgaged shall be restored 
to the mortgagor. 

Commentary. 

The scope of the section : — ^The amendment made by the 
introduction of the new section 15B merely extends to decrees in 
mortgage-sails the rule of sections 17 and 20 of the Act empowering 
the Court to direct that the amount of the decree s)mll be paid by 
iustMlments. If it is allowable to empower a Court to give srch 
a direction in regard to an unsecured claim, it seems to be a fortiori 
allowable in the case of a secured claim.^ 

By force of this section the Court may, instead of 
directing that the amount found due on the account be paid in one 
sum, direct it to be paid in instalments and the section moreover, 
says that in such a case, when an instalment is not paid, only so 
much of the property as may be necessary to pay the instalment in 
arrear should be sold, and LOt what would be necessary to pay the 
whole debt. 

By subsection (3) of this section, if the mortgagee be in pos- 
session and the possession be a beneficial one the redemption may be 
etftcted, without any sale and without any necessity for the debtor 
paying any sum in cash whatever, by merely continuing the 
mortgagee in possession for sometime. The mortgagee would thus 
work the whole debt off and then restore the possession to the 
mortgagor. 

[h] Sub-8i ction (4) was added by Act VI of 1895, b. 9. 

(1) SStatemeat of Objects and Keaaous. AmeDdiDg Act XXII of 18S2. 



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86 Ch. Ill, s« isBt In coun^ of proceedings under decree. 

But in order to work out this process^ it would be neoessary 
wben the time for restoring the land comee, that a farther aoconat 
should be taken to show that the debt was oooipletely recovered. 
And so sub-section (4), instead of directing that the mortgagee should 
remain in possession until the result of the account shows the debt to 
be paid, authorizes the Court to fix a time for which the mortgagee 
is to remain in, at the end of which period ho is to go out and 
the mortgagor is to resume possession of his property. 

In the course of any proceedings under a decree :-*lu a 

redemption suit under the Act the Court having passed a decree for 
the payment of the mortgage .amount within a certain period, and 
the decree being confirmed in second appeal, the mortgagor after 
the expiration of the time for redemption specified in the decree 
applied to the High Court for an order for the payment of the 
amount by instalments under s, 15 B. of the Act. Eeld^ that such 
an order could only be made in the course of the proceedings under 
the decree, that is, by the Court which carries out the decree.^ 
An application by the mortgagor after a consent decree has 
been passed in a redemption-suit, to make the amount of the 
mortgagor-debt payable by instalments, is not a '• proceeding under 
the decree'* within the meaning of cl. 1 s. 15B ; it is rather a pro- 
ceeding against the decree and therefore the Subordinate Judge has 
no jurisdiction to modify the decree in that way.^ 

No instalments after foreclosure :— The applicant, an 
agriculturist-mortgagor, sued the defendant, the mortgagee, for 
redemption on the terms provided by this Act. The account was 
made up and the mortgagor was directed to pay the sum found to 
be due within six months, or to be for erer foreclosed. He failed 
to pay within the time fixed, and afterwards applied, under s. 15 B 
of the Act as amended by Act XXII of 1882, to be allowed to pay 
the amount of the decree by instalments. Held^ that the order 
asked for could not be made. An order for foreclosure, when tlie 



(1) Bhagirthibai v. Hari Ravji, (1894), 19 Bom., 318 (Sargent, C. J. 
and Fulton, J.) ; (iulabpari v. Pandurang, 188(5 P. J. 14*2 releried to, 

(2) Datto V. Balvant, 1885, P, J. 248 (Birdwood and Jardine, JJ.). C/l 
Bttlcrishna v. Dnyanoba, 1889 P. J. 25. 



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Ch. Ill, s. isB. I« couc&e o^ proceeding's uilder deiree. ^ 

feiiiie appointed ' by the order has expired, itself operates to transfer 
the ownership, and the ownership, having once passed to the 
mortgagee, cannot be taken away from him by a subsequent order 
not fonnded on any way new transaction of the parties, except on 
some special ground, such as fraud or inevitable accedent, which 
should be the subject of a special proceeding.^ 

Where an agricultuvi:5t was allowed by the decree two years 
within which to redeem and was to be foreclosed at the end of that 
period and the decree further gave him the option of l>aying the 
inortgage debt in a lump sum or applying under s. 15B for in- 
stalments and he made no application within the 2 years, but after the 
foreclosure order had operated, made an application for instalments 
on the ground that at about the time of the expiration of the period 
allowed for redemption, he was very ill ; held, that as soon as the 
order for foreclosure had operated, there was a transfer of ownership 
and that he cannot get rid of the eftect of that order under the 
circumstances alleged by him.^ 

Effect of an order absolute : — The above decision seems to 
have turned upon the point of the transfer of ownership to the 
mortgagee by force of the operation of the order for foreclosure. 
But where in a decree the order is for sale and not for foreclosure, 
the question, whether the mortgagor will be allowed to pray 
for instalments even after tlw order absolute for sale is made, is 
very difficult to be solved, so far as the application of this Act is 
concerned. On the handy it may be said that in as much as by 
g. 89 of the T. P. Act the right of redemption is lost the moment 
the order absolute for sale is passed, the relation of mortgagor and 
mortgagee shall come to an end and the right to ask for instalm£nts 
cannot exist in favour of the mortgagor when an order absolute for 
sale has been once passed. On the other hand^ it may be said that 
the above provision of the T. P, Act cannot apply to the present 
question and the words, in the course of any proceedings uuder a decree 



(1) Ladu Chimnaji v. Babaji Khanduji, (1883) 7 Bom., o8-3 (Weat and 
Nttnabhai, JJ.)- 

(2) Kamchandra v. Bahirii, 1891 P. J. 7a (Birdwood and Parsons, JJ.), 

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3S Ch. Ill, s. isB. Instalment order not to be varied. 

are so wide that Coxtrts will be jxtstifiei in granting instalmerds (if 
other circtinisfances ave favourable) even after the passing cf the 
order absolute for sale.^ In the case of an order absolute for foreclosure, 
the proceedings under the decree in respect of which the order may 
have been made, come to an end when the order is passed, but in 
the case of decree for sale in respect of a mortgage, the proceedings 
do not terminate, because after the passing of the final order for sale 
many moi e things are to be done to give eflfect to the termsi and 
meaning of the decree.^ The question cannot stand undecided for a 
long time and en authoritative decision from the Bombay High 
Court may soon be expected. 

Instalment-order not to be varied. No estopel by 
acceptance :— Section 15B allows thd Court to order payment of a 
decree by instalments either in its decreeor in the coarse of the execution. 
But it does not authorize a variation of any order once so made. Nor 
does section 20 of this Act authorize a series of instalment-orders each 
one varying from the preceding. A decree was made payable bj 
instalments with a proviso that in default of payment of any one 
instalment, the whole amount remaining due should be recoverab/e 
at once. The judgment debtor made default. Thereupon the 
decree holder sought to recover the whole amount of the decree. 
The judgment debtor then applied for a fresh order for payment by 
in^'talments. The Court of first instance refused, but the ^Subordin- 
ate Judge in appeal granted the application. The Judgment- 
debtor paid in Court the amount of in&tal«iients which had become 
due under the second order. The decree-holder took out the money 
so paid in. Held^ that the Subordinate Judge in appeal had no 
power to make a fresh oriler for payment by instalments varyin;^ 
the original order. Held^ also, that the judgment-creditor by 
taking out the money paid into Court by the judgment-debtor iis 
instalments due under the second order for instalments did not bind 
himself to abide by that order .^ 

(1) See Bha^rvau v. (ianu, Supra. aQ<i tlie remarks of Hatiade, J. tberein. 
See also s. 2 (a) of T. P. Act. and ss. 290, 291 & 310A of Civil Procedure Code* 

(2) Indeed it is very much difficult to understand the proper signifi- 
cance of the expT^wiou— pat/able under the decree^m the Isi paragraph 
of the section. 

(3) Balkrishna Indrabhan v. Abaji bin Bahirji More, (1887) 12 Bom.> 
3-^6 ; O^^^st and Bird wood, J J.), 



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Chapter III, ss. zsB and zsC. 8^ 

A Court executing a decree can execute it in 
accordance with its terms :— When a mortgagee is under a decree 
ooQtiQued ia possession of the mortgaged property for a definite 
tinae. He is entitled to retain that possession until the expiration of 
the specified period and is not liable to be redeemed before then. The 
general role is that when the mntnal rights and obligations of the 
plaintiff and defendant have been determined by a decree, the decree 
affords the measure of those rights and obligations and a Court 
execating the decree can only execute it in accordance with its 
terra?^,^ — of course subject to oert«dn provisions, such as those given 
in ss. 15B, 20 and the like. 

Effect of default in paying instalments :— Where the 
question to be decided was whether under s. 15B cU 1, the 
Court could attach, to an order for payment by instalments of 
the money found due on the mortgage, a proviso that if there should 
be default in payment of any instalment, the whole remainiog 
mortgage-debt should become due, hddy that having regard to the 
special object of the Act, it could not have been intended by 8. 15B, 
that the Court should be able solely in the exercise of its dbcretion 
to effect by its decree what it is expressly forbidden to do by cl. 2 
of that section without recording the reasons in writing.^ 

M 15C. (i) Power to order payment by 
instalments in suits for possession of mortgaged 
property :— The Court may, if it thinks fit, in any 
suit for the possession of mortgaged property under 
section 3, clause (y), instead of passing a decree for 
possession of that property, pass a decree directing that 
the amount payable by the mortgagor shall be payable 
in such instalments, on such dates and on such terms 
as to the payment of interest, and as to the appropri- 
ation of the profits and accounting therefor, as it 
thinks fit. 

(1) RftinachaiuJra v. Kondaji, (lft96) 23 Bora., 221 (Pamin, C. J. and 
Fn]»nn, J.); 8HH Lnkehinan v. Slieik Abdulla, 1890 P. »T. 154; Mahant Ishwargar 
V. Chndaraina Manabhai, (1888) 13 Bom., 106; Balcriahna v, Abaji, (1887) 
12 Bom., 526. 

(2) Hama v. Ramchandra, 18^4, P. J., 466 (Sargpnt, 0. J. and Fulton, J.), 
(a) ThU eeotion was inoofted by Aot XXII of I8d2» s. 6. 

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90 Chapter III, ss. 15C, 15D & 16. 

(2) If a sum payable under any such direction is 
not paid when due, the Court may, if it thinks fit, 
instead of making any other order which it is empower- 
ed to make for the realisation of that sum, make an 
order directing that the mortgagee be put in possession 
of the whole or any portion of the property mortgaged. 

[a] 15D, Mortgagor may sue for account:— 

(1) Any agriculturist whose property is mortgaged 
may sue for an account of the amount of principal 
and interest remaining unpaid on the mortgage and 
for a decree declaring that amount. 

(2) When any such suit is brought, the amount 
(if any) remaining unpaid shall be determined under 
the same rules as would be applicable under this Act if 
the mortgagee had sued for the recovery of the debt. 

(3) At any time before the decree in the suit is 
signed, the plaintiff may apply to the Court to pass a 
decree for the redemption of the mortgage, or the 
mortgagee, if he would then have been entitled to sue 
for foreclosure or sale, may apply to the Court to pass 
a decree for foreclosure or sale (as the case may be), 
instead of a decree merely declaring the amount re- 
maining unpaid, and the Court may, if it thinks fit, 
grant the application. 

(4) The provisions of section 15b shall apply;to 
any decree passed under sub-section (3). 

16. Agriculturist-debtors may sue for ac- 
counts : — Any agriculturist may sue for an account of 
money lent or advanced to or paid for him by a creditor, or 
due by him to the creditor as the price of goods sold, or on 

(a) Thia Bootion was loaerted by Aot XXII o£ 1882, s. 6. 

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Chapter IIZ» ss. 15D & 16. Accouut«suits. 91 

a written or unwritten engagement for the payment 
of money, and of money paid by him to the creditor, 
and for a decree declaring the amount, if any, still 
payable by him to the creditor. 

Amonnt of debts in such cases to be de- 
termined according to foregoing provisions :— 
When any such suit is brought, the amount (if any) 
payable by the plaintiff shall be determined under the 
same rules as would be applicable under this Act if the 
creditor had sued him for recovery of the debt. 

Commentary. 

Account-suits : — Seotions 15D and 16 iatroduce novel 
provisions enabling the debtor to sue his creditor for accounts. 
Account-suits would come under s. 3 cl. (a) of Chapter II. The 
provisions of Chapter II materially differ from those of Chapter III, 
in as much as there is no appeal from any decree or order in any 
suit under Chapter II; while no such bar is to be found in Chapter III. 
An attempt was made in the Amending Bill of 1882 to bar 
appeals and introduce under Chapter III the system of revision given 
in Chapter VII, But the proposal fell through. By the same Bill of 
1882 the provisions of Chapter II were clearly made applicable to 
suits for accounts tvithaut any limit or value. And an amendment 
was accordingly introduced in q1. (a) of s. 3 of the Act. The clause, 
as is clear, applies to account-suits brought in the Court of a Sub- 
ordinate Judge under the provisions of ss. 15D and 16. 
The anamoly which unavoidably arises is that although appeals are 
not prohibited in all suits under Chapter III, they cannot be 
made in respect of suits for accounts under these sections. It is, 
however, submitted that section 3, cl. (a) should be construed very 
strictly, and when a simple suit for account has changed its form 
e. g. at the time of passing a decree, under cl. 3 of s. 15D or under 
s. 17, and a decree for redemption or payment by instalments is 
passed, s. 3 cl. (a) and s. 10 will no longer bo given any operative 
force in respect of such a decree and hence an appeal will not be 
barred. (For remissions of Court-fees see Part II of this book). 

"The amount shall be determined under the same 
rules : " — The rules herein referred to are evidently those embodied 
in ss. 12, 13, 13A and 71 A. of this Act. 

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9i Chapter in, as. isD Ac z6. Account-suits. 

Account-suits. Law before s. Z5D was introduced:~A 
snit for an account upon a mortgage could not be maintained by a 
mortgagor unless he asked for redemption also.^ And where there 
bad been a suit between an agriculturist-mortgagor and hb 
mortgagee for an account merely, a subsequent suit for possessioa 
on paymeut of money declared to be due was barred under either 
B. 13 or s, 43 of the Code of Civil Procedare.* But where an 
agriculturist mortgagor sued for account and did not also claim 
redempti m in the same suit, he was allowed by High Court 
to amend his plaint in second appeal and convert the suit into 
one for redemption,' 

Law after the amendment : — Under s. 15D of the Act 
as amended by Act XXII of 1882, an agriculturist-mortgagor can 
sue for an account upon a mortgage, without at the same time 
asking for redemption. Such a suit will not bar a subsequent suit 
for redemption. The section was expressly intended to remove the 
bar created by s. 43 of the Civil Procedure Code.* 

Where, however, under the provisions of cl. 3 of section, 15D 
in addition to the declaratory decree there has been a decree 
ordering payment and in default sale, a second redemption snit can 
not be brought. The testis whether the party could or could not obtain 
in execution of the decree the relief which he seeks in the suit,^ 

(1) Hari v. Lakahnaan, [1881], 5 Bum., 614 (Westropp, C. J. and Melvill, 
J.); followed in Hari v.Sitaram, 1882, P. J. 15, and referred to in Bhan 
Balaji v. Nilkanthrao, 7 bom., 377. 

(2) Bhau Balaji v. Hari Nilkanthrao, [1883] 7 Bom., 377 (Kemball, 
Pinhey, J J.). 

(3) Hari v. Sitaram, 1882, P. J., 15, (Melvill and Kemball, JJ.) ; Hari v. 
Lakshman, (1881) 5 Bom., 614, followed. C/". Jivaji v. Kaka, 1883 P. J. 9, 
(Sargent, 0. J., and Kemball, J.). 

(4) Lalucband v. Girjapa, (1895) 20 Bom., 469 (Jardine and Ranade, J J,); 
(In this case Ranade J. remarked at pp. 472 and 473 : — *< The power 

conferred on the Court to turn an account-suit iut) a suit for redemption is 
. . balanced by an alternative power to turn the account-suit 
into a suit for foreclosure or sale, if the mortga&ree applies for such 
conversion, and the Court sees fit to grant his application. The appellant'tf 
pleader admitted that this permission to turn an account- suit into a fore- 
closure suit cannot be construed into a prohibition to the morr.<;a{?ee to briQ<r 
a separate suit for foreclosure or sale, if he does not avail himself of cluUde 
3y or if the Court sees no reason to grant his application."} 

(5) Govind Valad Kama v, Mavji, 1897 P J. 364 (Parsons & Ranade, JJ.). 



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Chapter III, n. 25D, x6 <c Z7. 93 



« 



\Vhat may an account*suit determine :— In a soit by a 
mortgagor for. an accoant, the title of a person in possession can 
be tried in order to asoertaio whether or no profits of the land, since 
he got into possession, were held by him as mortgagee, and therefore 
to be placed to the credit of the plaintiff's account.^ 

A mortgagor instituted a suit on several mortgages, in the 
Conrt of a Sub- Jndge of Second Class, for account. The amount 
of all the mortgages put together iocreased the valuation of the 
suit over Rs. 5000. The plaintiff-mortgagor in order to bring the 
suit within the Court's Jurisdiction applied for permission to 
amend the plaint and to withdraw his prayer with respect to one 
of the mortgages. On a reference by the Sub-Judge to the High 
Court, held^ *' Section 15D which provides for a suit of an exceptional 
character was intended to give the mortgagor the power of obtaining 
an account of what was due on mortgage of his property. And 
therefore, in cases of there being several mortgage-bonds the account 
must be taken of all of them in the same suit. And if the total 
amount exceeds Bs. 500 the case does not fall under Chapter U of the 
Act. If it exceeds Rs. 5000, the First Class Subordinate Judge 
alone has jurisdiction."^ 

17. Decree under section i6 may provide 
for payment by instalments. Execution of de- 
crees under this section.— A decree passed under 
section 16 may, besides declaring the amount due, 
direct that such amount shall be paid by instalments, 
with or without interest ; and, when any such decree 
so directs, the plaintiff may pay the amount of such 
decree, or the amount of each instalment fixed by 
such decree, as it falls due, into Court, in default 
whereof execution of the decree may be enforced by the 
defendant in the same manner as if he had obtained a 
decree in a suit to recover the debt. 

(1) Kama v. Karimkhan, 1885 P. J., 112 (daigeut, 0. J., and Bird- 
wood, J.). 

(2) Babaji y. Hari, (1892) 16 Bom., 351 ; (Sargrent, 0. J. and Bixdwood 
J.). (Jf. 8. 3 cl. (a) of this Actj (see ». '^4 of Act. XIV oi 1869), 

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94 Chapter III ss* z8 & ig* 

i8. Payment into Court in cases under 
section l6.— The plaintiff in any suit instituted under 
section 16 may at any stage of such suit deposit in 
Court such sum of money as he considers a satisfaction 
in full of the defendant's claim against him. 

Notice of the deposit shall be given by the Court 
to the defendant, and the amount of the deposit shall 
(unless the Court otherwise directs) be paid to the 
defendant on his application. 

No interest shall be allowed to the defendant on 
any sum so deposited from the date of the receipt of 
such notice, whether the sum deposited be in full of the 
claim or fall short thereof. 

Commentary. 

Section 18 does not refer to s. 15D probably because the latter 
section was not there when the former was originally drafted. 
There seems to be no particular intention of the Legislature in 
excluding s. 15D from the operation of this section. However, 
whether the exclusion is intentional or unintentional, the section as 
it stands, can not apply to suite under s. 15D.^ 

19. (Power to discharge judgment-debtor. 
Power to direct institution of insolvency pro- 
ceedings.) —i?^i>^^/^af ^j/ Aa VI of 1895, s. 3.* 

Old Law. 

The repealed section is : — 

Power to discharge Judgment-debtor :— When a decree has been 
passed, whether before or after this Act comes into force, under which any 
sum less than fifty rupees is recoverable from an agriculturist, the Court, 

(1) This section may be compared with ss. 83 and 84 of Transfer of 
Property Act and with ss. 376 to 379 of Civil P. Code. It may be noted ako 
that this section applies only when the person depositing the money has 
instituttid a suit under s. 16 of this Act. 

* Although this section is repealed a reference to it is to be found in S8 
20 and 24. 



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Chapter III, s. 19 (old law) & s. io. 95 

" on application or of its own motion '' may, either in the course of execution 
of puch decree or otherwise, if it is satisfied that " the other debts (if any) 
due by him do not, taken together with such sum, amount to fifty rupees '^ 
and that he is unable to pay the whole of such euiii, direct the payment of 
such portion of the same as it considers him able to pay, and grant him a 
discharge from the balance " of such sum.'* 

Power to direct institution of insolvency proceedings :— When the 
sum payable under the decree amounts to fifty rupees* or upwards, or when 
there ore other debts due by the debtor which, together with such sum, 
amount to fifty rupees or upwards, the Court, ** on application or ot its own 
motion," may direct proceedings to be taken with respect to him as nearly 
as may be as if he had applied to be declared an insolvent uuder the 
provisionB hereinafter contained, 

20. Power to fix instalments in execution:— 

The Court may at any time direct that the amount of 
any decree passed, whether before or after this Act comes 
into force, against an agriculturist, or the portion 
of the same which it directs under section 19 to be paid, 
shall be paid by instalments with or without interest. 

Decree means a personal decree : — The words ** decree 
passed against an agriculturist " in this section, mean a decree 
passed against an agriculturist personally, and do not indxide a 
decree for the recovery of money hy the sale of mortgaged property. 
Tbe effect of this section must be taken to be an enlargement of the 
indulgence granted by s, 210 of the Civil Procedure Code, but 
only in those cases to which the latter section applies. By section 
210 of the Code, the Court may, after the passing of the decree in 
money-suits, order the amount to be paid by instalments, provided 
(lie decree-holder consents. By this section the Court may make the 
same order in similar suits, without the consent of the decree-holder,^ 
The second clause of s. 210 runs thus^: — 

" And after the paBsins^ of any such decree the Court may, on the 
application of the judgment-debtor and without the consent oj 
the decree-holder, order that the amount decreed bo paid by 
instalments mt such terms as to the payment of interest, the 
attachment of the property of the defendant^ or the taking of 
security from him, or otherwise as it thinks fit.-' 

( I.) Shankarapa Dargo Patel v. Danapa Virantapa, (1881) 5 Bom,, 004, 
(Westropp, C. J. and Melvill, J.) ; in this case the darkhast-proceeding dated 
before the Aut came into force. See the order of reference. See Balkrishna 
v. Dnyauoba; 1880, P. J. *^5. The Italioa are ouis. 



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96 Chapter III, s. 20« Insfalt^ent^ 

From the words nnderlined in the above section it clearly 
appears that the wording of s. 20 is more liberal to the debtor than 
that of 8. 210. 

Provisions for instalments: — Section 15B empowers a Court 
to grant instalments in a decree for redemption, foreclosare or sale 
passed under the provisions of this Act. By s. 150 in snits 
brought by a mortgagee for possession of the mortgaged-propertVj 
the Court trying the sait is empowered to order instalments for the 
payment of the mortgage-money due on the mortgage. Section 17, 
which refersto account-suits under s. 16, and which enacts that a decree 
under s. 16 may provide for payment by instalments of the amount 
found due, relates only to aocount^uits brought by debtors and s. 20, 
which of course does not apply to decrees in mortgage-suits,* simply 
authorizes the granting of instalments after a decree is passed, it 
thus follows, that in the case of ordinary suits (suits not relating to 
foreclosure or sale of a mortgaged-property) for the recovery of 
money brought by a creditor, there is no provision in the Act wbich 
allows the granting of instalments at the time of passing a decree. 
In this respect, therefore, the Court will have to act upon the general 
provisions given in s. 210 of the Oivil P. Code, the first paragraph 
of which section runs as follows :— 

** In all decrees for the payment of money the Court may, for anif 
sufficient reason^ order that the amount Bhall be paid by instal- 
ments with ov without interest ;" 

The reader will at once see that the words " for any saflScient 
reason" printed in Italics above, do not appear in s. 20 of this Act; 
nor in the second paragraph of s. 210 of (Jivil P. Code. Perhaps in 
cases under the second paragraph of s. 210, the consent of the 
decree-holder is as good a safe-guard as the considerate discretion 
that will be exercised by the Court. It is an open question whether 
in granting instalments under s. 20 the Court can be more lenieoii 
towards the judgment-debtor than they would have been if the words 
under consideration were to ex.i3t in the section. 

Another important point to be noted here, is that although a 
debtor can get instalments under this act, if he approaches the 
Court as a plaintiff under ss. 16 and 17, he cannot ask for install 

(1) See Balkrishna v. Dnyanoba, 1889 P. J, 26. 

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Chapter III, s. 20 Instalments ; s. 21 Imprisonment. 97 

meuts in a deoree under this Act simply because instead of suing 
his creditor he is himself sued. Of course in case he is sued by a 
mortgagee for foreclosure or sale, s. 15B allows him to move the 
Court for granting instalments. When instalments have been 
once granted under a deoree or order, no fresh order for instalments 
can be passed under this section. Section 20 does not authorize a 
series of instaIment«orders each one varying from the other .^ 

It seems s. 20 is not to be restricted to decrees for money only, 
bat may include decrees for the delivery of any moveable, which 
decrees shall also, as required by s. 208 of Civil P. Code, state the 
amount of money to be paid as an alternative if delivery cannot be had. 

The reference to s. 19 is made nugatory by the repeal of that 
section by Act VI of 1895. 

21. Arrest and imprisonment in execution 
of decree for money abolished : — No agriculturist 
shall be arrested or imprisoned in execution of a decree 
for money [^] passed whether before or after this Act 
comes into force. H 

Commentary. 

Object of the Section : — Imprisonment was, at best, a barba- 
rous device to meet the case of a debtor's concealing his property or 
refusing to give it up. It will be quite unnecessary for these purposes, and 
will be reserved for cases of flagrant fraud or dishonesty in insolvents.* 

" A decree for money " : — A decree directing costs to be paid 
in a particular manner is a decree for money as far as the award of 
costs is concerned.^ 

'' Passed whether before or after this Act comes into 
force " :— Before these words were incorporated into this section and 
in s. 22, both the sections were not held to be applicable to a decree 
made previously to the date on which this Act came into force.* 

(1) Balcrifthna v. Abaji, (1887) 12 Bom., 326 (West and Birdwood, JJ.). 

(2) Hon'ble Mi. Hope's Speech, Proceedings of Govwnor-GeneraPa 
Council for 1879, Vol. XVII, p. 47. 

(3) Yesu V. Waman, 1881 P. J. 316 (Westropp, 0. J. and Kemball, J.). 

(4) Dlpchandv. tiokaldas, (1880) 4 Bom., 363 (Westropp, C. J., M, 
Melvill and F. D. Melvill, JJ.). 

(a-a) f hese words were added by Act XKU of 1882, i. 8. 
13 



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98 Chapter III, s. 22 

22. Immoveable property exempted from 
attachment and sale unless specifically pledged. 

[a] Immoveable property belonging to an agriculturist 
[^] shall not be attached or sold [^] in execution of any 
decree or order [^] passed wbether before or after tbiis 
Act comes into force, [^] unless it has been 'specifically 
mortgaged for the repayment of the debt to which such 
decree or order relates, and the security still subsists. 
[^] For the purposes of any such attachment or sale as 
aforesaid standing crops shall be deemed to be move- 
able property. [^] 

But the Court, [®] on application or of its own 
motion, [®] may, when passing a decree against an 
agriculturist or [^ in the courser of any proceedings 
under a decree against an agriculturist passed whether 
before or after this Act comes into force, [^ direct the 
Collector to take possession, for any period not ex- 
ceeding seven years, of any such property of the 
judgment-debtor to the possession of which he is 
entitled, and which, in the opinion of the Collector, is 
not required for his support and the support of the 
members of his family dependent on him, and the 
Collector shall thereupon take possession of such 
property and deal with the same for the benefit of the 
decree-holder in manner provided by s. 29. 

The provisions of s. 31 shall, mutatis mutandis^ 
apply to any property so dealt with. 

[a-a] These words were substituted for the original words by Act XXIII 
of 1886, s. 7. 

[b] Words repealed by Act VI of 1895, s. lO, are omitted. 

[o-c] These words were inserted by Act XXII of 1882, s. 9 (1), 

[d-d] These words were inserted by Act VI of 1895, s. 10. 

[e-e ] These words we? e inserted by Act XXII of 1882, g. 9, (2). 

[f-f ] These words were substituted for the original words by Act XXII. 
of 1882, ». 9 (3). 



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Chapter III, s. 23. 99 

Old Law. 

The original words for whioh a substitntion marked [a-a] was 
made by Act XXIII of 1886, s. 7 were :— 

^ No agriculturiat»8 immoveable property shall be attached or sold," 
In the place of these words, Act XXIII of 1886, s. 7 
snbstitnted : — 

'^ Immoveable property belonging to an agriculturist, other than his 
standing crops, shall not be attached or sold." 

[b] And the words other than his standing crops in the above 
were repealed by Act VI of 1895, s., 10. 

The original words for which the substitution marked [f-f] 
was made by Act XXII of 1882, s. 9 (3) were :— 
^^ At any subsequent time." 

Commentary. 

Scope of section 22: — Section 22 is framed so as to 
secnre to the agriouitarist against his creditors the possession of as 
mnch of his land as is required for his support and the support of 
the members of his family who are dependent on him. For the 
purposes of this section standing crops were at first regarded as 
immoveable property.^ But it was found desirable that standing 
crops should not for purposes of attachment and sale be so treated, 
and consequently should not be exempted from being taken in 
execution of a decree. Being usually a kind of legitimate security 
for ao advance for the purposes of cultivation, it seems, the Legblature 
kept them accessible to persons making advances so that they may 
look to them for their recoupment if necessary. 

Law prior to the amendment of 1882 :— Neither s. 21 nor 
s. 22 applies to a decree made previously to 1st November 1879 ; and 
the holder of such a decree may arrest or imprison his agricnlturist- 
judgment-debtor, as well as attach and sell his immoveable 
property not specifically mortgaged.^ But it applies to decrees for 
money passed subsequently to the coming into force of this Act 
in suits filed before it was passed.^ 

(1) See 8idu V. Sanibhu (l88*<i), 6 liom,, 592. e^-ealso ^naudav. Mauaji, 
1880 F, J. 274 and Kippasliankai- v. (i.)vinJa, 1880 P. J. 3^9. 

(2) Dipthanci V, Gokuidas, (1880),4 Bom., 363: (Westropp, 0. J. and 
M. Melvill and F. D. Melvill, JJ.). 

(3) Yesu v. Waman, I88I P. J. 316 (Westropp, C.J. and Komball, J.}. 



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100 Chapter III^ 8. 22. 

Effect of amendment pendente lite :— On the 7th of 
September 1870, the applicant obtained a money-decree against 
certain agriculturist-defendants, and, having made five applications 
for execution npto 1879, realised a part of the judgment-debt. 
On the 2nd of September 1882, — that is, after coming into force 
of this Act, — the creditor made his last application for recovering 
the balance by attachment and sale of the lands of the 
debtors. On the 1st of February 1883 while the above 
application was pending, this Act was amended by Act XXII of 
1882, so as to prohibit the sale of the immoveable property of 
agriculturists in execution of a decree, even though such decree 
was passed before the date of the Act. Held^ notwithstanding the 
provision of s. 6 of the General Clauses Act and the attachment of 
the lands before the coming into operation of Act XXII of 1882, 
that the order for sale, having been made subsequently, was illegal, 
and should be set aside. The general rule is that a repealed statute 
cannot be acted on after it is repealed ; but, as provided in s. 6 of 
the General Clauses Act, 1868, all matters that have taken pla(^ 
under it before its repeal remain valid. But a new order of b 
Court, not ancillary or provisional, but directing a farth^ 
substantive step in execution of a decree, is a new proceeding which 
should be governed by the law in force when the order is made, 
and not by the law which it repeals. An application for an order for 
sale must on account of the elaborate provisions in ss. 320 and the 
following, and the prolonged process under this Act, be regarded as a 
new proceeding : not a mere continuation of one already begun. In 
this case it was also observed, that the mere fact, that a decree was 
made before the new law wss passed, would not indeed affect the 
matter, but an attachment would affect it, seeing that the new law 
is not made expressly retroactive as to existing attachments.^ 

The issues under this section : — ^Under this section the 
Court has simply to inquire : — (l)Was the land specifically mortgaged 
for the repayment of the debt ? (2) Does the decree or order relate to 
that debt ? (3) Does the security still subsist ? The word " specifi- 
cally " in the section has no greater force than the word •' specific " 
in s. 58 of the T. P. Act. 

(1) Shivram Udaram v. Kondiba Muktaji, (1884) 8 Bom., 340 (West and 
Nanabhai, J J.) ; see Manual Jfrasad, L. K. 8 lud. Ap. 123, and otber oasei 
Qited thereia. 



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Chapter III, s. 22. IGl 

Bhion an agricaltnrist borrowed in 1866 a snm of money from 

the plaintiff's mother, Yesabai, under a bond, whereby he mortgaged 

his house as security and also covenanted to pay each year to 

Yesabai half the produce of certain land as interest and the other 

half in reduction of the principal and in case of default she was to 

be at liberty to let the lands to others and to take the profits. 

Yesubai subsequently sued to recover the debt and obtained a decree 

directing the sale of the land. In execution of this decree, the land 

-was sold on the 5th June 1896, and was bought by the plaintiff, 

who now sued for possession. It was contended on behalf of the 

defendants that the covenant to pay the produce did not amount 

to a " specific mortgage " of the land and that consequently the sale 

to the plaintiff was invalid under this section. Ileld^ that the land 

was specifically mortgaged for the repayment of the debt and that 

the sale was valid, and plaintiff entitled to recover.^ 

Unless it has been specifically mortgaged :— With that 
part of the section where these words appear may be compared the 
ruling that s. 266 of the Civil P. Code, proviso (e) does not prohibit 
the sale of property specifically mortgaged, albeit, that the property 
be materials of a house belonging to or occupied by an 
agriculturist.^ 

Equity of redemption is immoveable property:— 
One Raghoji, an agriculturist, mortgaged the laud in dispute to the 
defendant in 1872. In 1875 one Dagdu obtained a decree against 
Raghoji (the mortgagor), who was then represented by his widow, 
the plaintiff. In execution of this decree Raghoji's equity of 
redemption was sold on the 10th February 1883 and was bought by 
the son of the defendant (the mortgagee). On the 12th 
April, 1883, the safe was confirmed and on the lOth November, 
1883, the purchaser took formal possession of the land. In 
18yi the plaintiff (widow and heir of the mortgagor Raghoji), 
brought this suit to redeem the mortgage and to recover the posses- 
sion of the land, contending that under s. 22 of this Act, the sale 
of the equity of redemption was a nullity. The lower Court dismissed 

(1> Bha^vandaa v. Hathibhai, 4Bom.,25, followed in Bapuji v. Mahada, 
1892. P. J. ill. 

(2) BalBhet v. Dhondo, (1901) 3 Bom. L. R., 545 ; s. c., 26 Bom., 33, 
(Candy and Fulton, JJ.). see Yenkatrao v. Bijesiug, (1885) 10 Bom., 108. 

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102 Chapter III, ss. 22 and 23. 

the snit, holding thai although the sale might be illegal, so long as 
the certificate of sale remained in force it was a bar to the plaintiff's 
right to redeem. Held^ that the plaintiff being found to be an 
agriculturist, this Act applied, the provisions of which applied 
althonoh the decree and order for sale were mada before the Act 
was passed. The Act expressly forbids the immoveable property 
of an agriculturist to be sold in execution, and an equity of 
redemption is immoveable property, within the contemplation of the 
Act. The sale, therefore, on the 10th February 1883, of the equity 
of redemption in the mortgaged lands was illegal and a nullity, and 
was no defence to the plaintiff's suit to redeem the mortgage.^ 

An application in contravention of this section would 
not save limitation :— An application by a decree-holder to attach 
an agriculturist judgment-debtor's immoveable property is not an 
application in accordance with law and it cannot be of avail to 
render a subsequent application for execution within period of 
limitation.^ 

The provisions of this section will have to be supplemented by 
s. 73 A. 

For Notifications under this section and s. 29, see Part II of this 
book.^ 

23. Chapter not to apply to Village-Munsifs' 
Courts : — No provision of this chapter shall apply to 
the proceedings in the Courts of Village-munsifs unless 
such provision has been specially extended thereto 
under the power hereinafter conferred. 

(1) iMahalavu v. Kusaji, (1893), 18 Born., 739 (Sargent, C. J. and 
Bayley, J.). In this case the plaintiff was considered an agricultarist because 
her husband and son were so. 

(2) Gbatur Kushalchand v. Mahadu Bhagaji, (1885) 10 Bom., 91. 
(Sargent, 0. J. and Biidwood, J,). 

(3) See abo B. G. G. for 1895, pt. 1, p. 176 ; and B. G. G. for 1903 pt. 
1, p. 306. 



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163 
CHAPTER IV- 

Of Insolvency. 

24. Subordinate Judges to have jurisdiction 
in agriculturists' cases :— Every Subordinate Judge 
sliall have the powers conferred by sections 344 to 359 
Cboth inclusive) of the Code of Civil Procedure, as 
modified by the provisions next hereinafter contained, 
for the purpose of dealing with applications under the 
Code of Civil Procedure or under this Act to have 
agriculturists residing within the local .limits of his 
ordinary jurisdiction declared insolvent and proceedings 
taken under orders passed under the second clause of 
section 19 ; and, except as provided in Chapter VII of 
this Act, no such application or proceeding shall be 
dealt with by any other Court. 

Commentary. 

How* far this Act differs from the Code:— The chief 
points in which the provisions o£ the Insolvency-Chapter differ 
from those of the Civil P. Code are that they allow an agriculturist 
to apply to be adjadicated an insolvent, though no process in exe* 
cution has been issued against him ; that they entitle him to an 
adjudication in all cases in which, as a matter of fact, he uSay be 
insolvent, leaving any misconduct on his part to be punished under 
the Code of Civil. Procedure ; and that they similarly entitle him in 
all cases to a complete discharge from debts, which after all reason- 
able enforcement, he is unable to pay.^ 

As modified by the provisions hereinafter contained :-^ 

The provisions of ss. 344 to 859 relate to insolvent judgment'debtors. 
In Districts to which the present Chapter has been es^tended, the 
application of the provisions aforesaid is made subject to the 

(1). 8tat«ment of Objeote and Reasons, (Act XVII of 1879), 

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i04 Chapter tV, ss. 24 and 25. Insolvency. 

modifioatioas contained in this Chapter with respect to proceedings 
to have an agriculturist declared insolvent. The modifications made 
are noted below under the appropriate sections. 

Second clause of s. 19 : — The reference in the section to 
proceedings taken under orders passed under s« 19 is now made 
nugatory by the repeal of s- 19 by Act VI 1895. 

No such application shall be dealt with by any other 
Court : — Under the Oivil Procedure Code, District Judges (s. 344) 
and Judges specially authorized for the purpose (s. 360) can only 
deal with applications in insolvency. But under this Act (by virfcue 
of this section) a Subordinate Judge alone can entertain snch 
applications in the first instance, though subsequently they can be 
transferred by the District Judge under his re visionary and super- 
visionary powers given by Chapter VII of this Act, 

25. Agriculturist may apply for adjudi- 
cation in cases not provided for by Code.— Any 

agriculturist whose debts (if any) amount to fifty rupees 
or upwards may appy to any Subordinate Judge within 
the local limits of whose ordinary jurisdiction he resides 
to be declared an insolvent, though he has not been 
arrested or imprisoned, and though no order of attach- 
ment has issued against his property, in execution of a 
decree. 

Commentary. 

" Any agriculturist**: — whether he be a judgment-dobtor or 
not, can apply under the section when he becomes indebted to the 
extent of 50 rupees or upwards. 

'^ Amount to fifty rupees* " An agriculturist whose 

debts amount to less than fifty rupees can apply under the (Jivil 
Procedure Oode if he satisfies the conditions laid down by the Code. 
Such a relief under the Act was once possible, but it has been taken 
away by the repeal of s. 19, by Act VI of 1895* 

Arrest and attachment— which are the conditions precedent 
to the entertainment of an application under s. 344 of the 
Oivil Procedure (3ode have little occasion under this Act in as 
much as s. 21 prohibits arrest of a judgmentdebtor, and s, 22 dis- 



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thapter IV, ss. 26, 27 & 28. Insolvency. 105 

allows attacbment of his immoveable property (unless specially 
pledged). A more attachment would not, moreover, enable an 
agriculturist to apply if he is not indebted to the extent given in the 
section. 

As to the contents of the application and the procedure there- 
upon see S3. 345 to 350 of Civil Procedure Code. 

26. Modification of section 351 of the Code:— 

Notwithstanding anything contained in section 351 of 
the Code of Civil Procedure the Court shall declare an 
agriculturist an insolvent if it is satisfied that he is in 
insolvent circumstances, and that the application to 
have him declared an insolvent has been properly made 
under section 344 of the said Code or section 25 of this 

Act. 

Commentary. 

" Notwithstanding . . • s. 351 "s— *te Court is bound to 
declare an agriouUurist insolvent if he is really in insolvent 
circumstances without having regard to any act of bad faith or 
recklessness of the debtor. It is to be noted, however, that the Court, 
having granted the application, is none the less empowered to punish 
the dishonest debtor under s. 359 of the Code for any such act of 
bad faith committed by him. 

'' Has been properly made under s. 344 of the Code or 
s. 25 of this Act ": — Neither of these sections gives the contents of 
the application. In this respect, therefore, both of them will have to 
be supplemented by ss. 345 and 346 of Civil Procedue Code. 

27. Receiver. No person other than the Nazir 
of the Court shall be appointed as Receiver, and no 
Receiver shall be entitled to commission. 

No such provision is to be found under the Civil P. Code. 

As to the effect of appointing a receiver, see note ss. 29 and 80. 

28. Proof of debts. ~In determining under 
section 352 of the said Code the amount of any claim pf 
the nature referred to in section 12 of this Act due 
by an insolvent agriculturist, the Court shall proceed 
in the manner prescribed *by sections 12 to 15 of this 
Act, both inclusive. 

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106 Chapter^V, s. 2^*iiiSolrettC3r. 

Commentary. 

Proof of debts : — ^^In determming the amount ^ of tl» 
debt, the Court shall go into the history of the debt undej* s. 12 and 
shall take acoount under s. 13, v/hen the original .claim is of the 
nature mentioned in 8. 3, clause (w) (the defendant being an agii. 
cnltuiist), and s. 3^ clauses y and z. * ' 

" In tnanner prescribed by ss. I2 to 15":— S, 14 providing 
for the interest to be allowed, and s. 15 providing for references to 
arbitration in certain oases were repealed by Aet VI of 1895. It is, 
however^ reasonable to suppose that the reference in this section to a. 14 
Is now to be read a3 applying to s. 71A which come3 in its place. 

29. Immoveable property not to vest in 
Receiver, but may be managed for benefit of 
creditors: — No immoveable property of the in- 
solvent shall vest in the Receiver ; but the Court, [*] on 
application or of its own motion, {^j j^^y direct the 
Collector to take into his possession, for any period not 
exceeding seven years from the diate on which the 
Receiver has been appointed, any immoveable property 
to the possession of which the insolvent is entitled and 
which, in the opinion of the Collector, is not required 
for the support of the insolvent and the members of 
his family dependent on him, and, subject to any rules 
the Local Government may from time to time make in 
this behalf, to manage, the same for the benefit of the 
c?reditors by letting it on lease or otherwise. 

Provided that, if the insolvent or his representative 
in interest at any time pays into Court the balance of 
the scheduled debts then unpaid, he shall, subject to 
any rights created in favour of other persons by the 
Collector, be entitled to recover possession of such 
property. 

A Collector managing property und^r this section 
shall during the management have all the powers 
which the owner might as such have legally exercised, 



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Chapter IV,' ss. 29 -fip 30; Insolvency. 1(57 

and shall receive arid recover all rents and profits of 
sucli property, and for the purpose of recovering such 
rents and profits shall have, in addition to any powers 
possessed by an owner, all powers possessed, by a 
Collector for securing and recovering the land revenue 
due to Government, except the ppwers mentioned in the 
^Bombay Land Revenue Code, 1879, . section 150, 
clauses ((5), (aOi and (^) . 

Nothing in this section shall authorise the Court 
to direct the Collector ta take into his possession any 
houses or other buildings belonging to and occupied by 
an agriculturist. 

30. Secured debts : —When any scheduled debt 
is secured by a mortgage of any portion of the in- 
solvent's immoveable property, the Court, [^] on appli- 
cation or of its own motion, [*] may direct the Collector 
if he can obtain a premium equal to the amount of such 
debt by letting such property for a term not exceeding 
twenty years, to let such property, and, if he cannot so 
obtain such premium, to sell such property under 
section 325 of the Code of Civil Procedure. 

Where property is let under this section the 
premium shall be applied to the payment of the debt, 
and the rent, if any, shall for a period of seven years 
from the date of such letting be paid to the Receiver 
and thereafter to the insolvent or his representative in 
interest. 

When property is sold under this section, the sale 
proceeds shall be applied, first, to the payment of the 
debt, and the balance, if any, shall be paid to the 
Receiver. 

[a— a] These words were inserted by Act XXII of 1883, s. 10. 

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108 Chapter IV| ss. 29 & 30. Insolvency. 

Commentary. 

*' On application or of its own motion " :— The proviskms 
of sectioQfl 22, 29 and 30, which empower the Court to order the 
CoUeotor to deal with the immoveable property of an insolvent 
in certain ways for the benefit of his creditors, are intended to enable 
the Court to act of its o^rn motion ; otherwise the provisions 
in question are likely to prove almost a dead letter.^ 

The povver of the Collector : — ^The Collector is empowered 
under this section to take into his possession all the immoveable 
property, to the possession of which the insolvent is 
entiUed, excepting (i) houses and buildings belonging to and 
aocupied by the insolvent agriculturist, and (ii) properly required for 
the support of the insolvent and the £&mily dependent on him. The 
Collector is also given all the the powers of an owner to manage iti 
subject to the qualification embodied in the section and the rales 
made by the Local Government thereunder. In thus managing 
the estate he can also exercise all the powers of a Collector for 
securing and recovering the land-revenue by any available means, 
excepting (i) forfeiture under s. 153, (ii) sale of defaulter's 
immoveable property under s. 184, (iii) arrest and imprisonment 
of the defaulter under ss. 157 and 158, of the Land Revenue Code. 
Effect of appointing a receiver: —(1) By virtue of s. 29, 
immoveable property belonging to the insolvent shall not vest in 
the Receiver ; but it will have to be managed by the Collector as 
provided by the same section. (2) The section, however, makes an 
exception in favour of that immoveable property belonging to the 
insolvent to the possession of which, he is entitled and which is 
required for the support of the insolvent and the members of his 
family dependent on him ; and such property shall not vest in the 
Receiver, nor will it be subjected to the management of the Collector. 
(8) As regards the houses or other buildings belonging to and 
occupied by an agriculturist, evidently these too shall not vest in 
the Receiver, and, moreover, they will not be subjected to the manage- 
ment of the Collector. It is to be noted that this kind of property 
is also saved by s. 266 of the Civil P. CodcJ. (4) So far as 
moveables of the insolvent are concerned, they will vest in the 
Receiver, unless they fall within the exempting clause or clauses of 
8. 266 of Civil P. Code. This is clear from the fact that s. 354 of 
(1) Statement of Objects and ReasonB for the Amending Act XXJI of 1882, 

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Chapter IV, ss. 31, 32 & 33. Insolvency. 10$ 

tlie Code will apply to insolvenoy-prooeedings under the Act, unless 
there is some provision to the conliary in this Chapter. 

Subject to the rules : — These rules^ are given in part II 
of this book, 

31. Insolvent incompetent to sell, etc., 
property dealt with under sections 29 and 30 :— 

So long as any management under section 29 or letting 
under section 30 continues, the insolvent and his 
representative in interest shall be incompetent to 
mortgage, charge, lease or alienate the property 
managed or let, or any part thereof. 

32. Scheduled debts discharged : —When the 
balance available for distribution among the scheduled 
creditors under section 356 of the said Code has been 
distributed, the claims of such creditors shall be deemed 
to have been discharged, except as regards the right to 
sbare in the profits of any property managed by the 
Collector under section 29, or let by him under section 30. 

Oommentary. 

Object of the Section: — If a man's debts are so heavy 
that he cannot clear them off in the time indicated in the last 
sections, it is befcter that he shoald get a discharge for the 
balance than that he should drag on as a slave without hope of 
freedom or stimulus to exertion.^ 

33. Appeals barred :— No appeal shall lie from 
any order passed under this chapter except orders 
passed in exercise of the power conferred by section 
359 of the Code of Civil Procedure. 

Commentary. 

Appeals under Civil Procedure Code :— It will be 
noted that orders under ss. 351, 352^ 853, 357 are appealable under 
olaufles (17) and (29) of s. 588 of t'ae Civil Procedure Code. 

(1) lilotificatioQ No. 892, dated 4tb February 1895. 

(2) Vide Hon'ble Mr. Ilojtfe's speech. — Proceedings in Governor 
Genwal'd, Oounoil for 1879, Vol. XVill, p. 152. 



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110 

CHAPTER V- 

Of Village-munsifs. 



34. Appointment of Village-munsifs :— The 

Local Government may, from time to time^ appoint 
any pdtel of a village or any other person possessing 
local influence in a village to be a Village-munsif for 
such village or for such village and for any other villages 
the sites of which are situate in the same district not 
more than two miles from the site of such village, and 
may cancel any such appointment. 
Commentary. 

Object of this Chapter :— " If notwithstanding all the 
preoautions (taken with a view to prevent litigation),* the 
dispute unfortunately developes into litigation, the Bill next 
endeavours to place the Courts of law within easier distance from 
the homes of the people, and to make them more absolnte, less 
technical, less dilatory and less expensive. In pursuance of the 
objects just mentioned, Chapter V empowers the Local Government 
to appoint any Patel of a Village, whom it deems competent, to be 
a Village-munsif. . . The Mnnsifs jurisdiction will be limited 
to suits for money not exceeding ten rupees, and will generally 
follow the model of the Madras-Village-Munsifs system, constitnted 
under Madras Regulation IV of 1816, except that the Munsif will 
not have, as there, a further jurisdiction, by consent of parties, 
extending upto Rs, lOO."^ 

35. Suits triable by them :— Every Village- 
xnunsif so appointed shall take cognisance of snits of 
the description mentioned in section 3, clause (ze^), 
when the subject-matter thereof does not exceed ten 
rupees in amount or value, and all the defendants at 
the time of the commencement of the suit actually and 

(1) The mattex* in brackets is our ow]\ insertion. 

(2) Hon'ble Mr. Hope's speech : Proceedings in Sttpreme Legi«l«tiff 
Council, for the year 1879, Vol. XVIII. p. 136 ; 



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Chapter V, s. 35* Of Village-munsife. lii 

voluntarily reside or carry on business or personally 
work for gain within the local area for which such 
Village-munsif is appointed. 

Jurisdiction of other Courts excluded :— 
Notwithstanding anything hereinbefore contained, a 
suit cognizable by a Village-munsif shall not be heard 
by any other Court : 

Proviso .'—Provided that the District Judge may, 
from time to time, transfer any suit instituted before a 
Village-munsif to his own Court or any other Civil 
Court in the district for trial: 

Provided also that no Village-munsif shall try any 
suit to or in which he is a party or is personally 
interested, or shall adjudicate upon any proceeding 
connected with or arising out of such suit. 

Commentary. 

Village-munsifs power in the trial of a suit:— The 
jnrisdiction of a Village-Mnnsif is exclusive. In order that a 
suit may be triable by a Village-Munsif the following conditions 
must be satisfied: (1) Tiie suit must fall under s. 3 (w). (2) The 
claim must not exceed ten mpees in amount or value. (3) All 
the defendants who need not necessarily be agriculturists must at the 
time of the commendenieiU of the suit be residing within the local area 
over which the jurisdiction of the Village-munsif extends, (4) The 
Village-Munsif must not be a party to the suit or must not be 
peisonally interested in it. 

As the provisions of the Oivil Procedure Code are not to be 
applied to the proceedings before a Village-Munsif, he will have no 
powef of reference or review under ss. 617 and 623 of the Civil P. 
Code. But when a suit is transferred from the Court of a Village- 
'Munsif to that of a Subordinante Judge, it seems, he will have such 
power. 

A Village Munsif has no jurisdiction to try a suit for rent under 
this Act.^ 

(1) Vithal Kaujcbandra v. Gangaram Vithoji, (1880) 5 Bom., 180 
(Westropp, C. J..aud MelviU, J.), 

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112 Chapter V, S. 36. Of Village-munsifs. 

36. District Judge's power of revision : — The 

District Judge may, on a petition being presented 
within thirty days from the date of any decree or order 
of a Village-munsif by any party deeming himself 
aggrieved by such decree or order, set aside such decree 
or order on the ground of corruption, gross partiality 
or misconduct of the Village-munsif [^] or on lie 
ground that the Village-Munsif has exercised a 
jurisdiction not vested in him by law [a] and pass 
such other decree or order as he thinks fit. 

Except as provided in this Act and in section 622 
of the Code of Civil Procedure, [^] every decree and 
order of a Village-munsif shall be final, 
Oommentary. 

District Judge's power :— There is no appeal to the 
Districfc Jndge against any decree or order cf a Village-mnnsif 
under this Chapter. The District Judge can inspect, supervise and 
control the proceedings of a Villiage-munsif under the priviso to 
s. 35 and under Chapter VII of this Act. Butunder the same Chapter he 
has no power of revision in respect of proceedings before a Village- 
munsif. He can exercise such a power ordy under s. 36 and upon an 
application of a party on the grounds laid down in s. 36. Saction 54 gives 
all the powers of the District Judge under this Act to the Special 
Judge and also gives to him the power of reference under 9. 617 of 
the Civil Procedure Code. But the District Judge or Special Judge 
can exercise the power of reference only in oases pending before him 
un^er Chapter VIL It follows therefore that he has no power of 
reference in cases pending before him in the OKorcise of his revisional 
power under s. 36, 

High Court's power:— This section leaves the Revisionaiy 
power of High Court unaffected. 

Concurrent Jurisdiction of the High Court and the 
District Judge :— When the Village-munsif has exercised 
jurisdiction not vested in him by law, the District Judge and the 
High Court have concurrent jurisdiction in revision under s. 36 of 
this Act and s. 622 of the Civil Proce dure Code respectively. 

(a-a) These words wore added by Act VI of 1895, •, 1 J. 



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Chapter V, s. 37. Of Villagc-munsife, li3 

37. Power of Local Government to make 
rules : — The Local Government may, from time to 
time, by notification in the ofl&cial Gazette, make rules 
consistent with this Act for regulating the procedure of 
Village-munsifs and for conferring on them or any of 
them all or any of the powers for the trial of suits or 
the execution of decrees exercised by a Civil Court 
tinder the Code of Civil Procedure or any other 
enactment for the time being in force. 

iV^. jy.— As to the roles made bj the Local Government under 
this section, see part II of this book,^ 

(1) See also part I of B. G. G. for 1879, pp. lOOl and 1002 ; and pp. 
708, 709 of B. G. G. for 1880 ; p. 894 of B. G. G. for 1898 ; and pp. 859 and 
1009 of B. G. G. for 1903. 



15 

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114 

CHAPTER VL 

Of Conciliation. 



38, Appointment of Conciliators :— The Local 
Government may, from time to time, appoint any 
person other than an of 
and may cancel any sr 

Every Conciliate 
shall be appointed o 
three years, bnt may 
for which he has been 
a further term not exce 

Every Conciliator 
functions under this A 
agriculturists residing 
Local Government ma 

\f\ The expressioi 
shall not be deemed to 
under Bombay Act Nc 
of the Village- Police in 

Object of the Chap 

standing nnfortanately arise 
party shonld be able to rose 
bound to use his best efforts 
should be commenced witho 
his endeavours in this behal 



[a] This para was added b; 
tba^ led to the insertion of this 
Reasons » (Bill No. 9 of 1881 ; i 

(1) llon^ble Mr. Hope's 
Legislative Council for 1879, V 



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Ch. VI, s. 39. Matters to be brought before Conciliator. 115 

^* May be again appointed ":-^A oonoitiator may be 
reappointed more than onoe.^ 

39. Matters which may be brought before 
Conciliator : — When any dispute arises as to, or there 
IS a prospect of litigation regarding, any matter ^^nthin 
the cognisance of a Civil Court between two or more 
parties one of whom is an agriculturist residing within 
any local area for which a Conciliator has been 
appointed, or when application for execution of any 
decree in any suit to which any such agriculturist is a 
party, and which was passed before the date on which 
this Act comes into force, is contemplated, any of the 
parties may apply to such Conciliator to effect an 
amicable settlement between them. 
Gommentary. 

" Any matter within the cognisance of Civil Court : "— 

This chapter is not confined to suits specified in s. SJ^ The 
expression — Civil Court — is not here defined and the explanation 
to 8. 47 can have no operation here, as it purports to apply to that 
section alone. Section 11 of the Civil P. Code enacts that Civil Conrtg 
are empowered to try all suits of a Civil nature unless their 
cognisance is specially barred. 

" One of whom is an agriculturist : "—In accordance with 
the wording, as it stands, it is suflSoient for purposes of the 
application of this section that any of the parties should be an 
agriculturist : it is not necessary that iho debtor slionUl* be an 
agriculturist. 

"To which any such agriculturist is a party":— Although 
the word which (in the eighth line of the section) has reference to the 
word decree, the section would, it is submitted, apply to execution* 
proceedings only when an agriculturist is a party to those proceedings. 
Cases can be imagined where only one of the parties to the decree was 
an agricultarbt but has since then ceased to be so or has assigned his 
interest under the decree to a non-agriculturist, or being dead, his 
interest has descended to his heirs who are not agriculturists. la 

(1) Dattaram v. Bhiva, 1887 P. J. 246 (Sargent, C. J. aud Nanabhai, J.).' 

(2) Dargaram v. Bhripati, (1884) 8 Bono., 411. (Nanabhai and 
Bird wood, JJ.). 

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116Ch. Vly s. 39. Matters to be brought before a Conciliator. 

all these oases, tbe vpording of the section, if strictly oonstroed, 
would apply and a Conciliator's certificate would be needed. That this 
\b not, however, the intention of the Legislature appears clearly 
from the wording of the cognate section 47. 

Taken literally, this section would also apply when execution 
13 soiight not by or against an agriculturist-party but by or against 
other non-agricnlturist pai'ty, the former being, however, a nominal 
party to the proceeding. 

" Which was passed before the date ''—See note to 

s. 47 under the heading " decree passed after the Act 4'o." 

" Any of the parties may apply ":—The word * may ' 
has been given the force of « must ' by the bar of section 47 (of 
course this applies where the parties mean to go to litigation). 
Under this section, so far as its provisions go, even a non- 
agriculturist party or a formal party can try and drag the other 
parties before a Conciliator even against their will. Bforeover, in 
the case of an agriculturist, when he is a creditor, or holds the 
position of a plaintiff, he may not be so much interested in seeking 
conciliation. But the effect of this section and s. 47 is to compel 
him to follow the procedure provided by this Chapter, even when the 
other parties against whom the relief is sought are not agriculturists. 

" To such Conciliator " :— This refers to the Conciliator (if 
any such has been appointed) for the territorial jurisdiction in 
which any agriculturist party resides. But where both the plaintiff 
and the defendant are agriculturists, it would be more in consonance 
with the general principles of law that the place of so applying 
should be the place where the agriculturist party against whom the 
relief is sought is residing. So also where the dispute between the 
parties has reference to land [and particularly where tbe nature of 
the dispute is such as may necessitate the inspection of the subject- 
matter thereof] it will be more beneficial and convenient to refer to 
the Conciliator for that place. But as the section goes, it has been 
held that the Conciliator to whom application under this section is to 
be made for an amicable settlement of a dispute must be tbe one 
appointed for the local area in which the agriculturist is residing^ and 
not for the district in which the land in dispute is situated.^ 

(1) Sayad Nyamtula v. Nana Valad Fdridsha, (1888) X3 Bom., 424 
(Birdlwood ftnd Parsons, JJ.). 



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Chapter VI, s. 40. ConciUation^procedure. 11/ 

40. Procedure thereupon :— If the application 
be made by one of the parties only, the Conciliator 
shall take down, or cause to be taken down, in writing 
a concise statement of the applicant's. case, and shall 
thereupon, by summons or by such other njeans as he 
deems fit, invite the person against whom such appli- 
cation is made to attend before him at a time and place 
to be fixed for this purpose, and shall direct the appli- 
cant also to be present at such time and place. 

Day for attendance may from time to time 
be postpond : — If such person fails to appear at the 
time first fixed, the Conciliator may, if he thinks fit, 
from time to time extend the period for his appearance. 

[^] A Conciliator empowered by the Local 
Government in this behalf may, instead of inviting, 
direct the person against whom the application is made to 
attend at the time and place either first or subsequently 
fixed. 

[^] If an applicant, or a person against whom an 
application is made, fails to be present or attend 
at the time and place specified in a direction proceeding 
from a Conciliator under this section, he shall be 
deemed to have committed an offence under s. 174 of 
the Indian Penal Code. 

Commentary. 

" If such person fails to appear : " — The words " if such 
person " evidently mean the person against whom ttie application 
is made. The absenoe of the applicant is not contemplated in this 
respect ; whether in such a case the application would be struck off 
or time extended for appearance is not clear under the section. But 
the practice^ is that the application is generally struck off. A 
second application to the Goncilictor is not, however, barred. 



[a] These paras were added by Act XXIII of 1886, s. 8. 
(1) See notes to b. 49. 



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118 Chapter VI, s. 41. Cohciliation-procedure. 

IiiTite and direct :— The dbfciaotiou between these two 
terms deserves to be noted. A party disobeying a direction would 
thereby oouiinit an affence but a party disregarding an invitation 
would not. 

This section before the new provisions were added to it in 1886 
gave to a Conciliator no power to ooin[)el the attendance of any 
party. But the want of such a power was found in a large 
number of oases to render the Oonoiliation-Chapter of the Act 
practically a dead letter, and on a reconsideration of the point, the 
conclusion arrived at was that the risk of abuse was not so serious as 
to warrant the withholding from the Conciliators a power which was 
clearly essential to the effective working of the system. After a great 
discussion> therefore^ two paragraphs were added to the section by 
the Amending Act of 1886, and as given in the last paragraph, a 
penal liability was affixed to the disobeying of a direction.^ 

The expressions invite and direct were not for the first time 
introduced in the section by the Amending Act of 1886. We find 
them in the first paragraph which is a part of the enactment of 
1879. The former expression is used with reference to the person 
against whom the application is made and the latter with reference 
to the applicant. Whether the distinction in thii phraseology 
was deliberate and whether the word ^direct' all along carried with it 
the specific meaning and consequence as expressed by the amendment, 
is a question of some difficulty. The question has, however, no 
practical importance and it seems desirable that whenever any 
direction of the nature given in this section is to be given to any 
party he should rather be warned as to the consequences which 
may follow, in case the direction w^ere to be disobeyed.^ 

41. When all parties appear, Conciliator to 
endeavour to reconcile them : — Whenever all the 
parties are present, the Conciliator shall call upon each 
in turn to explain his case regarding the matter in 
question, and shall use his best endeavours to induce 
them to agree to an amicable settlement or to submit 
such matter to arbitration. 

(1) See statement of Objects and Reasons, Amendinff Acts of XXII of 
1882 and XXIII of 1886. 

(2) If seems some rules have been framed to regulate the iasainff of 
such special summonses. 



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Chapter VI, ss* 42 & 43. Concitiation-procedure. 11^ 

42. Conciliator to hear statements of 
witnesses, etc. :— The Conciliator shall hear but 
shall not record the statement of any witness, and shall 
peruse any book of account or other document produced 
by the parties, or so much thereof as may be necessary, 
and, if any party or witness consents in writing to 
affirm any statement upon oath in any form not 
repugnant to justice or decency and not purporting to 
affect any third person, shall pro.vide for such oath 
being duly taken in the presence of all the parties. 

Commentary. 

The power of a Conciliator under this section :— 
A UoDciliator is not to be deemed a person having by law or 
consent of parties authority to receive evidence. He has to hear 
the witnesses with a view to see how far they wonid enlighten him 
on the matter in dispute before him. He has to take down in 
writing a concise statement of plaintiff's case, but he has not to 
take down in writing the defence of the other party nor the statement 
of the witnesses. But if any party or witness consents in writing to 
affirm any statement on oath, he is to see that the oath is duly 
taken. All this is so provided probably with a view to a rapid 
despatch of business and to simplify the record in this respect. The 
phraseology used in this section is peculiar to itself and would not 
authorize a Conciliator to go and inspect the subject-matter in 
dispute, as Courts^ are ompowered to do. However, this section 
along with s. 41, would not, it is submitted, be construed as strictly 
prohibitory, and a Conciliator may do any such thing which is 
reasonable with a view to do justice to the parties, and to amicably 
settle the dispute between them, 

43. Any agreement arrived at to be reduced 
to writing : — If on the day on which the case is first 
heard by the Conciliator, or on any subsequent day to 
which he may adjourn the hearing, the parties come to 

(1) It ^9 heldJn iManohar v. Gebiappa, (1882) 6 Bom., 31. (cited 
under s 48.) that a Conciliator exercising his function as such ia x\o\f to be 
deemed a Court, 

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120 Chapter VI, ss. 43 ft 44- Conciliation-pf ocedurt. 

any agreement, either finally disposing of the matter 
or for referring it to arbitration, such agreement shaU 
be forthwith reduced to writing, and shall be read and 
explained to the parties, and shall be signed or 
otherwise authenticated by the Conciliator and the 
parties respectively.^ 

Explanation, — A Conciliator may be appointed 
arbitrator under this section. 

[a]44. Procedure when agreement finally 
disposes of case and in other circumstances :— 

(i) When the agreement is one finally disposing of 
the matter, the Conciliator shall forward the same in 
original to the Court of the Subordinate Judge of 
lowest grade having jurisdiction in the place where the 
agriculturist who is a party thereto resides, and shall 
at the same time deliver to each of the parties a written 
notice to show cause before such Judge, within one 
month from the date of such delivery, why such 
agreement ought not to be filed in such Court. 

{2) The Court which receives the agreement shall 
in all cases scrutinise the same, and if it thinks that 
the agreement is a legal and equitable one finally 
disposing of the matter, and that it has not been made 
in fraud of the stamp or registration laws, it shall, after 
the expiry of the said period of one month, unless cause 
has been shown as aforesaid, order such agreement to 
be filed ; and it shall then take effect as if it were a 
decree of the said Court passed on the day on which it 
is ordered to be filed and from which no appeal .lies. 

{3) If the said Court thinks that the agreement is 
not a legal or equitable one, or that it does not finally 

[a] This section was substituted for the original s. 44 by Act VI of 
1895, 8. 12. 

(1) A sample form of a Kahdiyat U given in part II of this book, See 
also notes to s. 49, 



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Chapter VI, s. 44. Conciliation-pfoced^f e; 1^1 

dispose of the matter, or that it has been made in fraud 
of the stamp or registration laws, it shall of its own 
motion issue process for the attendance of the parties, 
and if after such inquiry as may be deemed necessary 
the Court finds that such agreement is a legal 
and equitable one finally disposing of the matter, and 
that it has not been made in fraud of the stamp or 
registration laws, it shall order such agreement to be 
filed ; and it shall then take effect as if it were a decree 
of the said Court passed on the day on which it is 
ordered to be filed, and from which no appeal lies. 

{4) If, on the other hand, the said Court finds that 
the agreement does not constitute a legal or equitable 
agreement, or that it does not finally dispose of the 
matter, or that it has been made in fraud of the stamp 
or registration laws, it shall return the said agreement 
to the Conciliator, and such Conciliator shall thereupon 
be bound to furnish on demand to the parties or any 
one of them a certificate under section 46. 

(5) The Court may in any case, for reasons to be 
recorded by it in writing, from time to time extend the 
period of one month allowed for showing cause under 
this section. 

Old Law. 

The original Section 44 was : — 
Procedure when agreement finally disposes of case:— When 

agreement is one finally disposing of the matter, the Conciliator shall 
forward the same in original to the Court of the Subordinate Judge of 
lowest grade having jurisdiction in the " place '' where the agriculturist who 
is a party thereto resides ; and shall, at the same time, deliver to each of 
the parties a written notice to show cause before such Judge, within one 
month from the date of such delivery, why such agreement ought not to be 
filed in such Court, 

The Court which receives the agreement shall, after the expiry of the 
said period of one month, unless cause has been shown as aforesaid, order 

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122 Chapter VI, s, 44. Conciliation*protedure. 

Buch agreement to be filed ; and it shall then take effect as if it were a decree 
of the said Court passed on the day on which it is ordered to be filed, and 
from which no appeal lies. 

The Court may in any case, for reasons to be recorded by it in writing 
from time to time extend the period of one month allowed for showing 
cause under this section. 

[The last clause has been added by Act XXII of 1882, s. 12.]. 
In this section, the word " Taluqa " had been substituted for 
the word " place " by Acfc XXIII of 1881, s. 8 ; but by Act XXII 
of 1882, s. 11, the word ^^ place'' was re^ubstituted for the word 
" Taluqa:' 

Commentary. 

" The Court ... of lowest grade ... in the place 
where agriculturist-party resides " :— This will generally be 
the nearest Court {except perhaps that of a Village-Munsif) both 
to the Conciliator and to the agriculturist-party. The jurisdiction 
of such a Court for the purpose of this section would not, it seems> 
depend upon the valuation of the subject-matter in dispute, nor 
upon the place where the subjeclrmatter is situate, nor upon the 
place where the defendant resides, nor will it depend on the place 
where the cause of action arose.^ Where, however, both the parties 
are agriculturists^ the place of residence^ of an agriculturist-debtor 
or of the agriculturist against whom any relief is sought would 
determine jurisdiction, as it would be more convenient to the 
indebted agriculturist for whose benefit this Act is intended. 

"Shall deliver a written notice":— The notice is to be served 
through the Subordinate Judge to whom the agreement is 
forwarded.^ 

An order, directing an agreement to be filed without service of 
notice contemplated by s. 44, is an exparte order and might, with 
regard to s. 74 of the Act, be set aside under ss. 108 and 647 of the 
Civil Procedure Code, as it is a condition precedent for the exercise 
of the Court's jurisdiction under s. 44 that such a notice shwld have 
been given,^ 

(1) Cf. 8. 525 of the Civil Procedure Code. 

{2) See s. 2, rules 2 and 3 ; vide also the comments to s. 39. 

(3) See Notification No. 5370, dated 29th August 1882, cited in part II 
of this book; also see Jotiram v. Oe^ba, (1885), 10 Bom;, 189, cited under 
«.49. 

(4) Murari v. Hari, 1887 P. J. 39. (Sargent, C.J. and Nanabhai, J.). 



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Chapter VI, s. 44. Conciliation-procedure. 123 

" Show Cause " :— The expression ** show cause " in para 
2 of ibis section means to allege and prove sufficient cause and not 
simply to object.^ 

" Finally disposing of the matter ":— This expression in 
8S. 43 and 44 means no more than the expression amicable settlement 
in ss. 41 and 46. An agreement for the settlement of the plaintiffs 
claim to be paid a mortgage-debt at once, or to have the property- 
sold, by an arrangement for the payment of the debt by instalments, 
-with power to the plaintiff, in default of payment of any instalment, 
to take or to retain possession until the debt has been satisfied out 
of the produce of the estate, is an amicable settlement, and therefore 
* one finally disposing of the matter,' which, if duly presented, must 
be filed by the Court. Where the sum due upon such six agreement 
is partly made up of interest, a provision to pay interest on any 
instalment remaining due does not make the agreement illegal.^ 

Under this section, the plaintiff in a case presented to the Sub- 
ordinate Court of Talegaon an agreement compromising the a/nount 
of a decree obtained by the plaintiff against the defendant in the 
Small Cause Court at Poena. The agreement stipulated that the 
plaintiff was to receive, in full satisfaction of the amount of the 
decree (which was for Rs. 59-15-11), the sum of Rs. 40 to be paid 
by yearly instalments of Rs. 4 each, and that, in default, the plaintiff 
was to recover the whole amount of the decree by executing it 
The Subordinate Judge refused to file the agreement, being of 
opinion that it did not finally dispose of the matter. The case being 
referred to the High Court, held that the agreement was one finally 
disposing of the matter within the meaning of s. 44, and that, 
therefore, the Subordinate Judge of Talegaon was bound to receive 
it, and to proceed as directed in that section.^ 

" Shall ••• order such agreement to be filed " :— The 
Court is bound to fie an agreement duly forwarded by a Conciliator, 
unless cause is shown within the time mentioned in s. 44.^ It is not 
essentially necessary that the parties should be present on the day fixed 
for their attendance. 

(1) Rajmal Motiram v. Krishna Valad Mahipati, (1895), 20 Born., 208 
(Sargent, C. J. and Fultou, J.); Dandekar v. Dandekar, 6 Bom., 663, followed. 

(2) Vasudeo Pandit v. Narayan Joshi, (1884), 9 Bom., 15. (Sargent, C. J. 
and Kemball, J.) 

(3) Lakshmichand v. Arjuna, (1881.) 6 Bom., 77, (Westropp, C. J. and 
Birdwood, J.) 

(4) Haibatrao v. Nathaji, 1883 P. J., 116. (Pinhey and Nanabhai, JJ.) , 

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124 Chapter VI, ss. 44 & 45* Conciliation-procedure. 

The inquiry under the Notification No. 2730 of 1881 mnsfc be 
consistent with s. 44. That Notification authorizes a Sub-Judge to 
refuse to file an agreement only if it 49 not an agreement within s. 
43. An order of the Ruh-Jutlfre and Speci il Judo^e refusing to file an 
agreement was reversedjin th^case noted below, as the agriculturists 
had not shown cause ev«n within the extended time given to them.^ 

iV.Z?.— The rule in \hU notification has been distinctly super* 
seded by s. 44 as amended by Act VI of 1895.2 

''It shall then take effect as a decree":— Where a Concilia- 
tion agreement was filed under s, 44 after the date of the first instalment 
due under it., held^ that the decree contemplated by the section can 
not be read as *' directing " the first instalment to be paid on a date 
anterior to the filing of the agreement, i,e, to the date of the decree 
and thai, therefore* the only date from which time can run, under 
Art. 179 of Limitation Act, is the date of the decree.^ 

S. 44 of this Act and s. 89 of T. P. Act :— Agreements filed 
under s. 44 of this Act, if relating to sale of mortgaged property, 
are subject to the provisions of s. 89 of the Transfer of Property 
Act.'* 

45. Procedure where agreement is for 
reference to arbitration :— When the agreement is 
one for referring the matter to arbitration, the 
Conciliator shall forward it to the Court having 
jurisdiction in the matter, and such Court shall cause 
it to be filed and proceed thereon in manner provided 
by sections 523 and 524 of the Code of Civil Procedure. 
Commentary. 

** The Court having jurisdiction in the matter'' — will not 
necessarily be the same to wliich an agreement finally disposing of 
the case would be forwarded under section 44. (Compare the wording 
of that section.). 

(1) RataDJi v. Nama 1889, P. J., 21. (Jardine and Candy, JJ.). 

(2) See Notification No. 3634, B. G. G. 1903, pt. 1 p. 859, cited ia 
part II of ihU book. 

(3) Madhavrao v. Vithu, 1886' P. J. 163, (Sargent, 0. J. and 
Birdwrood, JJ.). When the time for payment expires before the date of filing, 
it is extended by the Kdbuliyat to three months from the date of filing. 
See the form of the Eabulijat given in part II of this book. See also notes 
under a. 49. 

(4) Bhagwan r. Ganu, (1899) 23 Bom., 644. 

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Chapter VI, ss. 46 & 47. GoncUiator's certificate. 125 

46. Certificate to be given to applicant if 
conciliation fails. If the person against whom any 
application is made before a Conciliator cannot after 
reasonable search be found, or if he refuses or neglects, 
after a reasonable period has been allowed for his 
appearance, to appear before the Conciliator, or if he 
appears but the endeavour to induce the parties to 
agree to an amicable settlement or to submit the matter 
in question to arbitration fails, the Conciliator shall, on 
demand, give to the applicant, or when there are several 
applicants to each applicant, a certificate under his 
hand to that effect. 

See notes tiiider s. 49. 

47. Suit or application for execution not to 
be entertained by Civil Court unless such certifi- 
cate is produced. — No suit, and no application for 
execution of a decree passed before the date on which 
this Act comes into force, to which any agriculturist 
residing within any local area for which a Conciliator 
has been appointed is a party, shall be entertained by 
any Civil Court unless the plaintiff produces [^] a 
certificate in reference thereto obtained by him under 
section 46 within the year immediately preceding. [^] 

\y] Explanation. — The expression '^ Civil Court" 
in this section does not include a Mamlatdar's Court 
tinder Bombay Act No. Ill of 1876 {to consolidate and 
amend the law relating to the powers and procedure of 
Mamlatdars^ Courts) , 

Old Law. 

The original words for which a substitution was made by Act 
XXIIof 1882, s. 13 are ;— 

" Such certificate as aforesaid in reference thereto." 



[a — aJTnese words wore substituted for the original words by Act XXll 
of 1882, s. 13. 

|.b] This Explanation was added by Act XXIII of 1881, s, 9, 



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126 Chapter VI, s. 47. Condliator's certificate. 
Commentary. 

** No suit and no application for execution '' :— The 
necessity to proonre a Conciliator's certificate before the enter- 
tainment of a suit, to which an agriculturist, residing within any 
local area for which a Conciliator has been appointed, is a party, 
is not limited to suits specified in s. 3 of this Act, but extends 
to all matters within the cognizance of a Civil Court. Such a 
certificate is necessary before bringing a suit against an agri- 
culturist to obtain a declaration that certain property is liable to 
be sold in execution.^ Nay this section is applicable to ever?/ application 
for execution of a decree against an agriculturist within the meaning 
of that Act.* 

Filing a private award : No suit .-—Where a matter has 
been referred to arbitration, without the intervention of a Court of 
justice, by parties one of whom is an agriculturist, and an award 
has been made thereon, any person interested in the award may, 
without obtaining the condliator's certijkate^ apply for the filing of the 
award under s. 525 of the Code of Civil Procedure, the provisions of 
which are not superseded by s. 47 of this Act.^ This case was followed 
in another case where also it was held that the Code of Civil 
Procedure does not treat an application to file an award as a suit 
though it directs it to be numbered as one. And there are no 
express words in the D. A. R. Act to show that the word « suit ' is 
used throughout it, in other than its ordinary sensd. 

In the case noted below* it was remarked 2 — « When the 
parties go before a Conciliator, and in pursuance of his advice a 
reference to arbitration takes place, and an award is made, effect is 
given to the award without scrutiny. Where parties are before the 
Court and agree to refer a dispute to arbitration effect must be given 
to their agreement (s. 12), upon which the usual results are evidently, 

(1) Burgaram Maniram v. Shripati, (1884) 8 Bom., 411 (Nanabhai and 
Birdwood, JJ.). 

(2) Abaji V. Hari, 1881 P. J. 312. (Westropp, 0. J., and KembaU, J.). 

(3) Gangadhar Sakharam v. Mahadu Santaji, (1883) 8 Bom.. 20 rWest 
and Nanabhai, JJ.); C/. s. 15 ot this Act. ^ ^ ' ' ^ ^®^*' 

(4) Mohan v. Tukaram, (1895) 21 Bom., 63 (Farran, 0, J. and 
Parsons, J.); Gangadhar v. Mahadu, (1883) 8, Bom., 20 followed. 



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Chafrter VI, s. 4*7. Coiteiliator's certificate. 127 

we think, intended to follow; if aaawad is made, it mast be filed nnder 
section 522 of tbe Civil Procedure Code. This right of the parties to 
refer to arbitration is stiU preserved^ though the power of compulsory 
refefence ly the Court is now taken away. (Act VI of 1895, sec. 3). 
If the Legislature has thus thought fit to preserve the fall efiPects 
of an award in the case of a reference to arbitrators made after 
proceedings begun, there is, we think, no reason for presuming that 
it had a contrary intention in the case of a reference and award prior 
lo such proceedings. We think that we ought to follow the ruling 
in Gangadhar i% Mahadu^ and hold that the award should be filed 
without inquiry tinder section 12, It must be remembered that the 
judge before filing such an award can, upon objection by the 
debtor, inquire into the matter specified in section 521 of the Code, 
and if he is in doubt as to its hona fides or freedom from fraud, can 
refer the parties to a regular suit^ where the whole matter can be 
reopened under s. 12." 

" Decree passed after the Act comes into force": — Decrees 
passed subsequently to the Act coming into force will be decrees in 
snits either instituted after the date on which the Act came into 
force or before it ; in the former case, a C conciliator's certificate will 
have to be filed when the suit is instituted and no further certificate 
will be required in execution of the decree in such suit. In the latter 
case, where the suit is instituted before this Chapter is made appli- 
cnble or before a Conciliator is appointed and then a decree is passed, 
it is submitted, that a Conciliator's certificate should have been 
necessary for entertaining application for execution. It seems 
however, supb a case has escaped the attention of the Legislature. 

" To which any agriculturist is a party ":— Where it does 
not appear mitheface of the plaint that the defendant is an agriculturist, 
it must necessarily be entertained for the purpose of determining 
whether he is so or not. If it should turn out that he is, the 
prohibition contained in s. 47 will be satisfied by holding that the 
Court should not proceed further until the plaintiff has produced the 
necessary certificate.^ 

(1) Raghunath v. Anant, 1882 P. J., 368. (Sargent, C, J. and MelvilLJ,)* 
See the notes under ss. 39 and 44 mite. 



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128 Chapter VI, s. 47. Conciliators certificate. 

" Shall (not) be entertained ":— Suifcs or applications filed 
before th*) Act came into force or before the Ooaclliators are 
appointed will not be affected by this section.^ 

" A certificate in reference thereto." Addition of 
parties : — This section says nothing about what is to be done in 
case of addition of parties. It deals with the original suit only. As 
the Court cannot by the addition of the parties change the nature of 
the suit or make a new case for any of the parties, the suit continues 
to be the same. Therefore, a suit, to which this section applies, 
commenced to be entertained with a certificate, can be continued 
af^ainst parties who are added to it without a fresh certificate being 
required in reference to them. The words *' in reference thereto" 
used in s. 47 refer to the suit and not to the parties to the suit.^ 

Although there is no provision in this Act empowering a 
Conciliator to enter the name of the heir of a deceased party, and 
Government have not apparently under s. 49 (a) of the Act made 
any rules regulating the procedure before Conciliators in this respect, 
yet when a Subordinate Judge is seized of a Conciliaton-agreement, 
there is a proceeding before him under the Act. He should, therefore, 
under s. 74 of the Act follow the provisions of the Civil 
Procedure Code in regard to placing on the record the heirs of the 
deceased parties.^ 

Certificate of no effect after a year : — This is thought 
necessary in order to prevent these certificates being used in terrorem^ 
and it will probably operate beneficially in another way, in as much 
as when more than a year has elapsed from the time at which the 
attempt at conciliation has failed, it may not unreasonably be hoped 
that a fresh attempt may be successful.* 

Suit dismssedfor want ofa certificate : effect ;*— A suit 
being dismissed against the principal debtor, on the ground that no 

(1) See Raghunath v. Anant, 1882 P. J. 368; Sayad jNyamtula v. Nana 
Valad FMiiJsba, (1888) 13 Born., 424 cited. 
(•2) Krishnarao Anandrao v. Hari, 1898 P. J. 397 (Parsons & lianade, JJ.). 

(3) Narandas Sakharam v. Kondi, (1894) 19 Horn., 302. (Sargent, C. J. 
and Cand} , J.). 

(4) Statement of Objects and Reasons (Act XXII of 1882.). 

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Chapter VI, ss. 47 & 48. Conciliator's certificate. 129 

eonciliator^s certificate had been obtained under this Act, it was 
held that this did rkft amount to discharge of the principal^ and that the 
snit oonid proceed and a decree be given against the snrety.^ 

The objection as to want of proper certificate : — 
The want of a proper certificate U not fatal to a sait. As soon 
as a defect in a certificate becomes apparent, the proper coarse is 
for a Ooart to stay proceedings to enable the plaintiff to make 
good the defect by producing a requisite certificate.* This defect 
does not vitiate the suit and a fresh certificate can be filed in appeal.^ 
The oljection to the snit, on the ground that a proper certificate is 
not obtained, can be taken for thejirst time in second appeal^ as it is 
an objection affecting the jorisdiction of the Coart below.* 

[^] 48. Allowance to be made in period of 
limitation: — In comfuting the period of limitation 
prescribed for any sucli suit or application the time 
intervening between the application made by the 
plaintiff under section • 39 and the grant of the certifi- 
cate under section 46 shall be excluded, p] 

Old Law. 

Section 48 of Act XVll of 1879 was :— 

" Iq coniDuting the peiioJ of limitation prej*cribed for any such iuii* the 
time iiiterveuiiig between the application made by the plaintifT under secttoa 
thirty nine and the grant of the certiiioate under section i<irtj-Mx shall be 
excluded." 

(1) Narsu V. Narsu, 1883, P. J. 282 (Bayley, Ag. C.J. and Pinhey, J.). 
Cf. Putali V. Tulja, 3 Bom., 223 on the point of res judicata- 

(2) Saya*! Nyamtula v. Nana Valad Faridsha, (1888) 13 Bom., 424 
Birdwood and Parsont, JJ.) It is otherwise under s. 433 ojf Civil Procedure 
Code that is so because the wording of that aeotioQ is very peremptory. 

(3) Krishnarao Anandrao v. Hari, 1898 P. J. 397 (Parsons and 
Ranade, JJ.). 

[a] This sec^Joa was substituted for the original seoUon 48 by Act 
XXIII of the 1881 » s. 10. 

[b] Th:; neoond paragragh repeated by Act XII of 1891, is omitted. 
* iNo ihe aon-exis cDce of the word appliation af er the word suit, 

17 



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130 Chapter VI, s. 48. Allowance in limitation. 

In place of this section, Act XXIII of 1881, s. 10 substitnted a 
new section, the first paragraph of which is the present section 48; 
the second paragraph of the same, being repealed by Act XII of 
1891, was:— 

"Any such application which after the first day of November, 1879, has 
l?een rejected, and which, if such time had been excluded in computing the 
period of limitation prescribed for such application, would have been 
entertained, shall be enter tainei if made within two months from the twenty- 
sixth day of October, 1881." 

Commentary. 

Law before the amendment by Act XXIII of i88i: — The 

time spent by a judgment-creditor in obtaining a certificate from a 
Conciliator under this Act, prior to its amendment by Act XXIII of 
1881 in order to entitle such creditor to obtain execution of his 
decree, cannot be deducted in computing the time within which such 
decree may be executed.^ 

To give a fresh starting point the application to take some step 
in aid of execution must be made to the proper Court; a Conciliator 
appointed under this Act is not a Court. The presentation, therefore, 
to a Conciliator of an application to effect an amicable settlement 
within the period of limitation does not save the limitation, if the 
application to the proper Court be time barred. The presentation 
to any Civil Court of an application for execution of a decree 
passed before the Act came into force, to which an agriculturist 
residing within any local area for which a Conciliator has been 
appointed, is a party, is no legal presentation at all if the 
application be not accompanied by the Conciliator's certificate.^ 

Law under the amendment : — The period during which the 
Conciliator is endeavouring to effect an amicMe settlement is to be 
deducted in computing limitation under this section,^ And this 
rule is not limited to suits falling under s. 3 only.^ 

(l)Madhaji V. Shivaji, (1881) P. J., 243. (Westropp, C. J. k Pinhey, J.). 

(2) lijPhnohar v. Gebiappa (1881) 6 Bom., 31. (Melvill and Kembal, JJ.) 

(3) Venkatrao Bapu v. Bijeeing Vithftleiag, (1885) 10 Bom., 168. 
(Sargent, 0. J. and Birdwood, J.). 

(4) Durgaram v. tihripati, (1884) 8 Bom., 411 cited under s. 47. 



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Chapter VI> ss. 48 & 49* Allowance in limitation. 131 

Where the Oonciliation-agreeuient was ordered to be filed after 
the date of the first instalment due under it, held that the period of 
limitation ran from the date of filing.^ 

A suit in which no certificate is needed : — The time 
occupied before a Conciliator by a plaintifiF in a suit in which no 
Conciliator^ s certificate is necessary^ cannot be deducted in computing 
the period of limitation for such suit.^ 

"Application . . . under s. 39": — In the case noted below^ 
the plaintiff was an agriculturist residing in the Kopargaon Taluka 
and purchased the house in dispute from the defendant on the 30th 
January 1872, but did not get possession. On the 12th December 

1883, he applied to be put into possession under s. 39, to the 
Conciliator appointed for the Khatav Taluka, where the house in 
dispute was situate. The proceedings before the Conciliator lasted 
until the I9th February 1884, on which day a certificate under s. 46 
of the Act was granted to the plaintiff. On the 20th Februarj-, 

1884, the plaintiff brought this suit to recover possession of the house. 
The defendant pleaded limitation. The plaintiff contended that 
under s. 48, the time occupied in the proceedings before the 
Conciliator should be deducted in computing the period of limitation. 
JSeldf that the plaintiff was not entitled to such deduction, as the 
Conciliator^ before whom the proceeding had been instituted, was not one 
appointed for the local area in which the plaintiff was residing, q& 
required by s. 39, and had, therefore, no jurisdiction to deal with 
plaintiff's application. Held also, that the certificate obtained by 
the plaintiff was not such a certificate as is required by s. 47 
of the Act. 

49. Local Government to make rulesi :— The 

(1) See Madhavrao v. Vithu, 1886 P. J. 162 cited under s. 44. See 
notes'^under s. 49. 

(2) Ganesh v. Balaji 1883, P. J. 238. (West and Nanabhai, JJ.). 

(3) Sayad Nyamtula v. Nana Valad Faridsha, (1888) 13 Bom. 434 
(Birdwood and Parsons, JJ.). Raghunath Dadajee Khade v. Anant Govind 
Bhopale, 1882 P. J., 368 referred to. 

(4) For rules under this section see part II of this book. See also part 
lofB.G.G. for 1879 pp. 999-1000, for 1880 p. 1072, for 1882 p. 682, for 
1884 p. 7M, 1903 pp. 389 and 85S. 



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132 Chapter VI, s. 40. Procedure before ConciUator. 

Local Government may from time to time make 
rules — 

(a) regulating the procedure before Conciliators 
in matter not provided for by this Act ; 

(b) fixing the charges to be made by Concili- 

ators for anything done by them under this 
Chapter; and 

(c) determining what record and accounts shall 

be kept by Conciliators and what retiims 
shall be framed and furnished by them. 

Commentary. 

The sections of this Chapter and the notifioaiions issaed by 
Gt>veTiimeni thereunder are not sufficient to give a complete idea of 
the procedore before Conciliators. We, therefore, propose to add some 
notes on the practice for the reader's information. 

(a) The procedure before Gonciliators."^ 

The application— 'to be made under s. 39 to a Concili- 
ator should be in writing almost in the form of a plaint. It 
ue<3d not be verified ; but it should bo accompanied by documents or 
extracts from accounts on wLieh it is based ; and tbe list of the 
documents put in should be eittered on the application. Such an 
application may be made either by one party or by both jointly ; in 
the latter case, however, the (.^onuiliator is enjoined to inquire 
whether the indebted party, joining ia the application, has folly 
understood what he is doing. 

Admission of the applicatioti : — When an application 
is presented to a Conciliator he will generally file and register it^ if 
(t) the dbpute is of a civil nature and can be taken cognizance of 
by a Civil Court; and if (») any of the parties to the application is 
described as an agriculturist residing within the local limits for 



• Th« information given below is taken mostly from the rales made by 
the Special Judge for the guidanoe of Conciliatorfi. We have aot dwelt oa 
points purely ministerial^ as doin^ so would not interest ordinary reader. 



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Chaipter VI, s. 49. Pr6C€dure before ConciHatcr. 133 

whioh he is app< anted, if the Conciliator lia^ reason to snspect tbat 
a party desoribed as an agricultnri.st is really not so, he vrill 
inquire into the matter and refer the case if necessary to the 
Snbordinate Judge for inqniy and order. 

Issue of summons : — When the application is filed, the Con- 
ciliator will fix a day for hearing, which will generally be any day 
within one month from the date of filing — of course having regard 
to the distance of the place where the opponent may be residing. 
He will at once inform the day of hearing to the applicant and 
issue summons to tlie opponent If the opponents are more than one 
and reside in different villages, each one will have a separate 
summons issued to him and served through the agency of the Civil 
Court or of a Village-officer as the Conciliator may think convenient. 
The Conciliator may even call the parties himself, if he thinks 
they would attend without a summons. 

The rule that a noti?e to parties to a Conciliation-agreement 
should be served through a Subordinate Judge, framed by the Local 
Government under s. 49 of this Act and published at page 682, 
part 1 of the Bombay Government Gazette, (1882) is not tdtra vireSy 
and a notice so served was held to be a good notice,^ 

Adjournments : — Conciliators are generally instructed to use 
utmost despatch in the disposal of applications. An application can 
in no case be kept pending for more than three months except with 
the permission of the Special Judge; and generally more than three 
adjournments should not be allowed. 

Attendance : —Parties may attend even before the day fixed 
for hearing if they want the disposal of the application on that day. 
The Conciliator will note the attendance of parties and if the opponent, 
for suffirdent reason, could not attend, the Conciliator may adjourn 
the hearing to any further day. 

Effect of failure to attend :— («) If the applicant does not 
attend without any sufficient reason, the application will generally 
be dismissed.2 (b) If the opponent does not attend (without good 

(1) Jotiram Maniram v. Devba Iswarapa (1885) 10 Bom. i89. (Sargent, 
C. J. and Nanabhai, J.). 

(2) If howe7er the opponent is present and is willing to compromise, 
one more adjournment will be given to enable the applicaat to attend. 

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134 Chapter VI, s. 49. Procedure before Conciliator. 

reason) a oertifioate will be given to the applicant under s. 46. If 
both the parties do not attend after a special sumnionsy from a 
Conciliator specially authorized under s. 40, has been served against 
them, they will be deemed to have committed an offence under 
s. 174 of the 1. P. Code. This penal liability applies even when 
one of the parties happens to be absent. 

The disposal of application : — ^The application may be dis- 
posed off in either of the following ways : — (i) It may be dismissed, 
(it) if the parties agr<;e to a settlement a Kahdiyat may be made or, 
(iii) if the parties cannot agree, a certificate may be given. 

When will the application be generally dismissed ?— 

(a) If the applicant fails to pay the process-fees or Court-fees within 
the time allowed by the Conciliator (generally four days), (&) if the 
applicant fails to attend on the day fixed for hearing, the application 
will generally be dismissed. 

Taking an application again on file :— If the applicant 
within 30 days from the day of dismissal, applies to get his 
application again on file and shows sufficient reason therefor, the 
application will be again taken on file ; in which case no fresh 
process-fees need be paid, 

Kabuliyat : — After the inquiry under ss. 40, 41 and 42, if, 
the parties come to an agreement finally disposing of the matter 
under s. 43, such agreement, which is styled as a Kabuliyaty will be 
written almost in the form^ of a decree (^ith some additional en- 
dorsements) and signed by the parties and attested by the Conciliator. 
Such Kahxdiyat will generally be filed before the day on which 
performance of the agreement embodied in the Kabxdiyat is to be 
made. The £!onciliator may, in proper cases, with the consent of the 
parties add or strike off the names of parties. 

Issue of certificate : — A oertifioate is issued under s. 46 
(i) when the opponent wilfully absents himself or cannot be 
found, 

(ii) when the endeavour to induce the parties to agree to an 
amicable settlement fails, or 

(1) A eample of the KabultT^at is given in part II of this book. 

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Chapter VI, s. 49. Pf occdurfc before Conciliator. 135 

(iii) when the Conciliator thinks that the claim of the appli- 
cant is not within time ; or that the doonmeot which is 
the basis of the claim is defective for want of stamp, 
registration and the like. 

NmB. —When the Conciliator is satisfied that the first certificate 

given to the applicant is really lost, a new certificate 

will be given to him. 

The application to get a certificate should be made within ten 

days from the date when the order to give such certificate is passed 

by the Conciliator. 

The duties of a Conciliator : — Amongst a number of other 
ministerial duties, 

(i) The Conciliator ought not to interfere in a matter in 
which he is personally interested without the permission 
of the Special Judge. 

(ii) when the parties come to an agreement and a Kahuliyat 
is drawn, the Conciliator should take care to ascertain 
whether the persons before him are the real parties to 
the dispute, and whether they have fully understood the 
meaning and efiPect of what they had agreed to do 
and have freely given their consent thereto. 

(iii) The Conciliator has generally to try his best to bring the 
parties to (a voluntary) amicable settlement. 

(iv) A Conciliator should make a report to the Special 
Judge, if he is to be absent for more than four days from 
the place for which he is appointed. 

Reference to Special or Subordinate Judge :— 

(i) When the status of a party comes into question the matter 
is referred to the Subordinate or Special Judge, 

(ii) when a matter is required to be kept pending for more 
than three months, or 

(iii) when the Conciliator is interested in the matter before 
him, a reference will be made to the Special Judge. 

(iv) When any of the parties to. a Kahuliyat revokes his 
consent to it and protests against its being filed, the 
Conciliator will reter the matter to the Court to which 
the Kahuliyat is to be sent. 

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1:^6 Chapter VI^ s. 40. Procedure before Conciliator. 

Remand :— The Court may remand a oase to the Oonciliafcor 
for further inqairy ur amendment of the Kabviiyat. The Conciliator 
after further inquiry should make the necessary changes in the 
Kdbuliyat and get them attested by the parties. If after any 
Kahxdiyat is remanded the parties do not appear, it may he sent back 
to the Court. When a Kabuliyat b sent back by the Court in order 
that the Conciliator may give the party a certificate under s. 46, the 
Conciliator may take the original application on file and grant the 
certificate if the applicant presents himself in time to receive it. 

Transfer: — The Special Judge may transfer an application 
from the file of one Conciliator to the file of another. But a 
Conciliator himself cannot make such a transfer. 

Documents put in: — M the documents put in With, the appli- 
cation be extracts from account- books, the Conciliator will compare 
and check them with the original and return the original books to 
the parties. If the party putting in any docucnentj immediately 
wants it back, the Conciliator may make the necessary endorsements 
on the document and on the applicatian m the nr.atter of which it b 
produced, and return it to the party producing it, asking him at the 
same time to produce the same when called for. The Conciliator will^ 
if so required, pass receipts of documents put in and kej^t by him in 
his custody. Documents which, by force of the kafmliyat, have 
become void or useless, will not be returned to the parties but will 
be sent to the Court with the Kabulyat with an endorsement to 
thai effect. But where the document has not thus become void or 
useless, a true copy of the same will be sent to the Court with the 
Kabuliyat and the original returned to the party producing it after 
taking his acknowledgement of the receipt of the same on the appli- 
cation. When a matter before a Conciliator is settled iodependently 
of him or when it cannot he settled and a certificate is given to the 
applicant under s. 46, all documents put in will be returned to those 
persons who had produced them. 

(b) Charges to be made by Oonciliators. 

The process-fees — will be received in the form of Court-fee 
stamps. The process-fee for summons will be imd only once. So 
if a fresh summons is required to be sorved ujion the persons already 
summoned, or their heirs (in case of the death of the former), do 



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Chapter VI, s, 49, Charges and Records. H;^ 

additional process need be paid. So also, where a summons is to 
be served upon the opponent for himself and as the gaardian of a 
minor, one process need be paid. 

Court fees : — The Court-fees are taken generally from the 
applicant within a time — not more than 15 days, — fixed by the 
(JoQciii^tor. On failure to pay the same by any of the parties within 
time, the application will stand dismissed. The Court fee is taken 
at the rate of 8 annas per cent on the amount awarded in the 
Kahdiyat. The valuatiou of a suit, other than those desoribod in 
8. 3 of this Act, will for this purpose be determined by the general 
rules of Court-fees Act. Court-fee-stamps should be affixed to the 
Kabxdiyat; when the fees amount to more than 10 TU]^eSy the Kaffuliyat 
should be written on the stamped paper. 

Costs : — The costs of prooessfe^s will be entered by Conciliator 
on the margin of the KabuUyat or the certificate as the case may be. 

(c) Records,^ Betarns and Accounts. 

A Conciliator has chiefly to keep a general register of appli- 
cations, a process-fee and Court-fee book, and an inaward and 
outward register. He has also to send to the Special Judge by the 
end of every month a monthly statement of the disposal of 
applications and the fee received therein, a monthly report, 
contingency bills, &c. 

The ai>plications disposed of in any month are to be sent to the 
Court before the 15th of the next month. And except the Register- 
book and fee-bock for the current year and a year preceding it, 
all other such books of previous years are to be sent to the Court for 
safe custody. 

(1) The forms of record with necessary directions are given io part II of 
this book. 



18 

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138 

CHAPTER VII. 

Superintendence and Revision. 



50. District Judge to inspect, etc:— The 
District Judge shall inspect, supervise and control the 
proceedings under \f\ Chapter II, Chapter IV and 
Chapter VI \f\ of this Act, of all Subordinate Judges 
and the proceedings of all Village-munsifs and 
Conciliators. 

[b]5i. District Judge may withdraw case 
from Conciliator or Subordinate Judge, or sit 
with Subordinate Judge as a Bench for trial of 
any case :— The District Judge may— 

{a) transfer any application pending before a 
Conciliator to the file of any other 
Conciliator ; 

(i) \f\ transfer from the Court of one 
Subordinate Judge to another any suit or 
any agreement pending before a Subordi- 
nate Judge under Section 44 of this Act ; 
or \f\ transfer to his own file any suit or 
other matter pending before the Court of 
any Subordinate Judge under \f\ Chapter 
II, Chapter IV or Chapter VI H of this Act, 
and may dispose of the same as if he were 
a Subordinate Judge ; or 



[a— a] These references were substituted for the original references by 
Act XXII of 1882 s. 14. 

[b] This section was substituted for the original s. 51 by Act XXIII of 
1881,8.11. 

[c— c] These words were added by Act VI of 1895, s. 13, 



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Chapter VII^ ss. Si & 52. Superintendence. 139 

(c) stay the proceedings in any such suit or 
matter, and sit together with such Judge as 
a Bench to dispose of such suit or matter in 
accordance with the provisions of this Act. 

If the Members of any Bench sitting under this 
section differ in opinion, the opinion of the District 
Judge shall prevail. 

Old Law. 

This section in Act XVII of 1879 was :— 
The District Judge may— 

(a) transfer to his own file any am^ or other matter ponding 
before the Court of any Subordinate Judge under Chapter II 
or Chapter IV of this Act, and may dispose of the same as if 
he were a Subordinate Judge ; or 

(b) stay the proceedings in any such suit or matter, and sit 
together with such Judge as a Bench to dispose of such suit or 
matter in accoi dance with the provisions of this Act. 

If the members of any Bench sitting under this section differ in opinion| 
the opinion of the District Judge shall prevail. 

[a] 52. Appointment of Assistant or Sub- 
ordinate Judges to aid District Judge :— (1) The 

Local Government may appoint an Assistant or Sub- 
ordinate Judge to inspect and supervise, subject to the 
control of the District Judge, the proceedings of all 
Subordinate Judges under Chapter II, Chapter IV and 
Chapter VI of this Act, and of all Village-munsifs 
and Conciliators in any district or part of a district to 
which this Act applies : 

Provided that, if the Local Government thinks fit, 
the same Assistant or Subordinate Judge may be so 
appointed for two or more such districts or parts of 
districts or districts and parts of districts. 

[a] This section was substituted for the original s. 52 by Act VI of 
1895, s. 14. 



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140 Chapter VII, s. 52. Superintendence. 

(2) The District Judge may, by order, conifer upon 
any Assistant or Subordinate Judge appointed under 
this section, as regards any district or part of a district 
for which he is so appointed, all or any of the powers 
specified in the order which vest in the District Judge 
under section 51. 

Old Law. 

The original section 52 was : — 

Th« Local ("Jovernment shall appoint an Aesistant or Subordinate Judge 
to inspAct and supervise, subject to the control of the District Judge, the 
proceedings of all Subordinate Judges, under "Chapter II, Chapter IV, 
and Chapter VI " of Ihis Act, and all Village-Munsifs and Conciliators in 
each of the said districts of Puna, Satara, Sholapur, and Ahmadnagar : 

Provided that, if the Local-Government thinks fit, the same Assistant or 
Subordinate Ju<ige may be so appointed for two or more such districts. 

Apy As istant or Subordinate Judge appointed under this section may, 
in any district for which he is so appointed, if the District Judg-e so direct, 
exercise the powers of the District Jndg^ under section 51 of this Act, and 
transfer any sait under section 25 of the Code of Civil Proceedure. 

Commentary. 

District Judge's powers of Superintendence :— The 
powers of Superiritendence of a District Judge are defined by 
sections 50 aal 51 and the District Jud^e has also the power under 
pnra (2) of s. 52 to deligate the functions vested in him by s. 51 
to aay Assistant or Subordin«te Judge appointed under s. 52 by 
the Local Government. Section 51 does not refer to proceedings 
before VHlage-Munsifs, but powers somewhat similar to those in 
s. 51 have been vested in the District Judge by the proviso to 
8. 35. A Special Judge (if appointed) is to discharge in the place 
of the District Judge all his powers under this Act. 

Powers of Assistant and Subordinate Judges : — The 
Local Government may vest an Assistant or Subordinate Judge with 
jpoyrevs o{ inspection and Surpervision mentioned in s. 50, which 
will be exercised subject to the control of the District Judge. It is 
submitted that under the section, as it stands, the Local Government 
cannot confer on an Assistant or Subordinate Judge the powers 
vested in a District Judge by s. 51. But the District Judge may 

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Chapter vn,as* S3 ^54* Revi^on. 141 

confer such powers on Assistant or Subordinate Jndges appointed 
under s- 52. An assistant or a Subordinate Jadge appointed nnder 
s. 52 has not any independent and fall powers either of revision or 
reference.^ 

53. Of revision :— The District Judge may, for 
the purpose of satisfying himself of the legality or 
propriety of any decree or order passed by a Subordin- 
ate Judge in any suit or other matter under [*] 
Chapter II, Chapter IV or Chapter VI [*] of this Act, 
and as to the regularity of the proceedings therein, call 
for and examine the record of such suit or matter, and 
pass such decree or order thereon as he thinks fit ; 

and any Assistant Judge or Subordinate Judge 
appointed by the Local Government under section 52 
may similarly, in any district for which he is appointed, 
call for and examine the record of any such suit or 
matter, and, if he see cause therefor, may refer the 
same, with his remarks thereon, to the District Judge, 
and the District Judge may pass such decree or order 
on the case as he thinks fit : 

Provided that no decree or order shall be reversed 
or altered for any error or defect or otherwise, unless 
a failure of justice appears to have taken place. 

54. Special Judge :^The Local Government 
from time to time may, and if the Government of India 
so direct shall, appoint an officer, as Special Judge, to 
discharge in the place of the District Judge all the 
functions of the District Judge under this Act in 
respect of the proceedings of all Subordinate Judges, 
Village-munsifs and Conciliators, and may cancel any 
such appointment. 

(1) Vide 8. 53 para 2, 8, 54 last para ; compare 8. 435 (Criminal Pro. 
Code) last para. 

[a— a] These references were substituted for the original referenoefl by 
Act XXII of 1882, 8. 14. 

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Chapter VII, s. 54. Revision. 

Sucli Special Judge shall not, without the previous 
sanction of the Government of India, discharge any 
public function except those which he is empowered by 
this Act to discharge. 

If any conflict of authority arises between the 
Special Judge and the District Judge, the High Court 
shall pass such order thereon consistent with this Act 
as it thinks fit. 

No appeal shall lie from any decree or order passed 
by the District Judge under this chapter, or by the 
Special Judge, or by an Assistant or Subordinate 
Judge appointed under section 52, or by a Bench, in 
any suit or proceeding under this Act. 

[a] But the District Judge or Special Judge, or an 
Assistant or Subordinate Judge or Bench, may refer to 
the High Court, under section 617 of the Code of 
Civil* Procedure, any question of law, or usage having 
the force of law, or the constructidn of a document, 
arising in any case pending before him or it under 
this chapter as if that case were a suit or an appeal 
pending before him or it ; and, in respect of every 
reference so made, sections 618 to 621 of the said Code, 
both inclusive, shall apply: 

[^] Provided that no reference shall be made under 
this section by any Assistant or Subordinate Judge, 
or by any Bench of which the District Judge or Special 
Judge is not a member, without the previous sanction 
of the District Judge or Special Judge, as the case 
may be. 

Commentary. 
The powers of revision— 

Of the District or Special Judge :— The powers of revision 
given by this section are restricted only to suits and proceedings 
' [a] These paras were added by Act XXII of 1882, 8. 15. 

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Chapter VII, ss. 53 & 54- Revision. 145 

under Chapters II, IV and VL An execution^order in a suit to 
whieh Chapter II applies is an order in the suit, and, therefore, 
suhjeot to revision under s. 53.^ In a suit falling under cl. (w) of 
s. 3 the Special Judge has jurisdiction although neither of the 
parties to the suit is an agriculturist.' With reference to proceedings 
before Village-munsifs, the District Judge has no power of revision 
under this Chapter. A provision in this respect is, however, made 
in s. 36 of this Act. 

Under Section 36 — the District Judge can only act on 
the application of a party and cannot act of his own motion; while under 
s. 53 the District Judge can exercise his revisional jurfadiction 
proprio motu.^ 

Under soctioos 53 and 54 the Special Judge can interfere with 
an iihproper as well as an illegal decree or order. His revisional 
jurisdiction resembles that possessed by the High Court under the 
Code of Criminal Procedure, and ought, if it be held to include the 
power of setting aside the decision of a lower Court on the facts, 
to be exercised only in very exceptional cases.* 

But in a subsequent case it was held that under this section the 
Special Judge has a revisionary power in all cases when a failure of 
justice appears to have taken place* It is for him to decide whether 
the finding on a question of fact by a Subordinate Judge is of that 
nature, and in doing so, he is entirely within his jurisdiction.'^ 
Section 622 of the Civil Procedure Code gives to the High Court 
jurisdiction to interfere only where the Lower Court acts without 
jurisdiction or has exercised its jurisdiction illegally or with material 
irregularity.^ But the practice of this Court under section 622 of 
the Code cannot, in the absence of words to that effect, be properly 
imposed on the special Judge as regards matter of law determining 
jurisdiction. 

(1) Manobar v. Bhavani, 1885 P. J. 90 (Birdwood and Wedderburn, JJ.). 

(2) Ganesh Erishnaji v. Erishnaji, (1889) 14 Bom., 'SS7. (SooU and 
Candy, JJ.). 

(3) Vide Balcrisbna v. Mahadeo, (1896) 22 Bom., 520, cited later on* 

(4) Shidu V. Bali, (1890), 15 Bom., 180 (Birdwood and Telang, JJ.) 
dissented from in 19 Bom., 286 ; see also 23 Bom., 321. 

(5) Guru Bassaya v. Chanamalappa, (1894) 19 Bom., 286 (Sargent, 0. 
J. and Fulton, J.) IShidhu v. Bali, (1090) 15 Bom., 180, dissented from. 

(6) Usmanbhai v. Imratbhai, 1893 P. J. 148 ; (Sargent, C. J. and 
Telang, J.) Rayacband v. Sultan Rahimbhai, (1893) 18 Bom., 347 referred to. 

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144 Chapter VII, 89*53 fi^ 54* Revioiott. 

When the Special Judge under this Act entertcuns a dear 
opinion that the findings of the Subordinate Judge on the qaestions 
of faot are erroneou8» and exercises his discretion in setting aside the 
decree, the High Court will not, in its extraordinary jurisdiotioOt 
interfere with that discretion, except under most exceptional 
circumstances.^ 

The possibility that a Sub-judge may have decided the question 
of limitation wrongly by having present to his mind an earlier 
decision instead of a later decision offers no ground for the exercise 
of the extraordinary jurisdiction in a decision from the Special Judge 
under the D. A. R, Act.* 

Where the Lower Court finds the parties to be non- 
agriculturists— Special Judge has no jurisdiction : — The 
plaintiff alleging that she was an agriculturist sued for r«Hiemption 
under Chapter II of the D. A. B. Act. The Subordinate Judge 
raised an issue as to her statru and on that issue found that she 
was Dot an agriculturist. He, however, proceeded with the trii^l of 
the case and on the merits dismissed her claim. She thereupon 
applied to the Special Judge, who took up the case in revision, 
reversed the decree of the Lower Court, and passed a decree in the 
plaintiff's favour, holding that sh was an agriculturist. Hdd that 
the Special Judge liad no jurisdiction. The Sub-Judge had found 
that the plaintiff was no an agriculturist. Having done so, it must 
be deemed that he went on with the trial only in his ordinary 
jurisdiction and the decree passed was one not under Chapter II 
of the D. A. R. Act, but under the general provisions of Civil 
P. Code. By s. 53 the Special Judge has jurisdiction only over 
the decisions and orders passed by a Sub-Judge under Chapter 11.^ 

Where a suit to redeem a mortgage was admittedly within 
the jurisdiction of the Court of First Instance under this Act, it was 

(1) Bayachand Mayaohand v. Saltan Rahimbhai, (1893) 18 Bom., 347 
(Sargent, C. J. and Telang, J.)« 

(2) Sakharam v. Parvati, 1888 P. J. 274 (Sargent, 0. J. and Nanabhai,J.). 

(3) Lakshmanv.Bamcbandra (1898) 23 Bom., 321, (Parsons and Ranade^ 
jj.). Cj: Bbagavant v. Ranjfo 1884 P. J, 30 and Kondaji v. Anau, (1883) 
7 Bom., 448. (West and Nanabhai, JJ.). 



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Chapter VII, ss. 53 and 54. Revision, 145 

held that it was within the revisional powers of the Special 
Jndge, and none the less so because the Special Judge, while 
confirming the decree of the Lower Court, incidentally found that 
the mortgage sued on did not really exist and that another one did 
exist of such an amount that a suit to redeem it would not have 
been within Chapter 11 of the Act.^ So also an application of 
Chapter II of this Act which would be illegal and wrong, if the 
Subordinate Judge knew the subject-matter was of greater value 
than Rs. 100, may be sustained if he was led into applying it by 
honest misinformation. And the original proceedings being thus 
justified, a Special Judge can revise them and order a new trial.' 

Withdrawal of a suit in revision :— Tho Special Judge is 
not com|3etent in the exerciso of his revisional powers to allow a 
plaintiff to withdraw his suit with liberty to bring a new one 
merely on the ground that he has made some mistake in filing the 
sait.^ 

Right to remand : — The Special Judge has a right to remand 
a case.^ 

The power of reference : — This section empowers a 
reference on a question of law or usage or on a construction of 
document arising in a case under this Chapter* No doubt, the 
essential qualifications in s. 617— -that the trying Court must 
entertain reasonable doubt on the question^ and that the construction 
must affect the merits — do not appear in this section. But it is 
submitted that as this section expressly refers to and relies upon 
section 617 of the Code, both the sections mast be read together in 
order to ascertain whether a reference would lie in any particular 
case. 

The word case in s. 54 evidently includes suits and proceedings 
under Chapter II, IV or VI. 

(1) Bhagvant v. Range, 1884 P. J., 30. (West and Nanabhai, JJ.). 

(2) Kandajee v. Anau, (1883) 7 Bom., 448 (West and Nanabhai, JJ.). 

(3) Muktaji Bhagoji v. Manaji, (1888) 12 Bom., 684. (Birdwood and 
Parsons, JJ.). 

(4) Kondumal v. Kasiba 1881, P. J. 1 (Westropp, C. J. and Birdwood, 
J.). 

(5) See Bhanaji v« De Brito, (1905) 7 Bom. L. R., 995, 
19 

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146 Chapter VII, ss. 53 and 54* i^evisioit. 

** Appointed under section 52 '' :-*The Assistant and 
Subordinate Jadges appointed under s. 52 have no independent 
power of reference or revision like that possessed by a District Jndge^^ 
Bnt ihe proviso to s. 54 has no application to references under s. €17 
of the Civil Procedure Code by a Subordinate Judge not appointed 
under s. 52 of this Act. The previous sanction of the Special Judge 
is not, therefore, necessary to a reference made by a Subordinate 
Judge in a case not tried by him under Chapter YII of this Aot and 
it is not competent to the Special Judge to refuse to forward suoh a 
reference,^ 

Powers of review : — It is to be noted that this Chapter, while 
conferring the powers of reference and revision on certain Judges, does 
not confer upon them any powers of review. Under s* 74 the 
Civil Procedure Code is made applicable to proceedings before 
Subordinate Judges only. The Subordinate Judges, therefore, oan 
review their own findings independently of this Chapter ; while a 
District Judge or a Special Judge cannot. But the discretion given 
to the District or Special Judges under their powers of revision is so 
wide that they can use their discretion in revising their decrees or 
orders in certain cases. It seems, however, that they cannot review a 
case simply on the ground of the discovery of fresh evidence.* 
Moreover, the Special Judge has jurisdiction praprio motuy under the 
provisions of s. 53, to vary a decree of the Lower Court while not 
reviewing the case on the ground applied for by the plaintiff.* 

The exercise of discretion :— An Assistant Judge having 
found that the defendants in a suit pending before him were not 
agriculturists, the defendants presented a petition of review of that 
finding and in review the Assistant Judge came to a contrary 
conclusion. Held that as s. 74 only makes the Civil Procedure 
Code applicable to suits before a Subordinate Judge, the conduct 
of proceedings before a District or Assistant Judge, when sitting in 

(1) Vide 8. 53^ para 2 and s. 54, last para. 

(2) Rango v. Kalu, 1885 P. J. 221. (Birdwood, and Jardine, JJ.)* 

(3) A detailed description of the cases illustrating these points is given 
in the next paragraph. 

(4) Balcrishna v. Muhadeo, (189G) 22 Bom., 520. (Farran, C. J. and 
Uosking, J.). As to the facts of the case, see the case cited in notes to 
sections 12 and 13. 



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Chapter Vn, 8S, 53 wd 54* Revision. XA? 

cevisioa under s« 53 c£ this Act, is within his own disoretion, and 
the graniiDg of a review on the ground of mistake as to the nature 
of the defendant's income, is a reasonable exercise of suoh discretion.^ 

The Special Judge appointed under this Act (the defendants 
not appearing) reversed, in revision under s. 53 of that Act, the 
decree of the SubnTudge and passed a decree for the plaintiff. 
One of the defendants, who, it appeared, had not been served with 
notice of the previous application for review, subsequently applied 
to the Special Judge to review his decree, and that application was 
granted on the ground that the applicant had not had notice of the 
former review. On this subsequent review, the Special Judge 
diseovered that he had made a mistake with reference to the date 
of certain documents, and that this mistake had led him to a wrong 
coaolusion upon the merits of the case. He consequently reversed 
his former order and dismissed the suit, confirming the original 
decree of the Subordinate Judge. The plaintiff then applied to the 
High (Jourt under its extraordinary jurisdiction under s. 622 of the 
Civil Procedure (Jode. Held that in granting a rehearing, the 
Special Judge had exercised a reasonable discretion with which the 
High Court could not interfere in its extraordinary jurisdiction. 
The Civil Procedure Code is not applicable to proceedings before the 
%>ecial Judge, and the conduct of such proceedings rests within his 
discretion-^ The Special Judge cannot, under this Act, review his 
decree and order a new trial on the ground of discovery of fresh 
evidence,' but he has discretional power to review his decree 
in order to correct a mistake into which he has fallen.^ 

The Special Judge, under this Act, has power to set aside an 
eojparte order made by himself — if such a< course be needed for a 
reasonable exercise of the discretion on his part.^ 

(1) Badricbarya v. Ramchandra Gopal, (1893) 19 Bom., 113 (Sargent, 
C. J. and Candy, J.) ; see Visvanath v. Aba, 1886 P. J. 11, Of. Babaji v. 
Babaji, (1891) 15 Bom., 650. 

(2) Ramsing v. Babu Kisansing, (1893) 19 Bom., 116. F. B. (Sargent 
C. J. and Parsons and Fultoni JJ.). 

(.3) Babaji v. Babaji (1891) 15 Bom., 650 (Birdwood and Parsons, JJ.) 
cited in Ramsing v. BabukisansiDg, Supra, 

(4) Ramtiing v. Babu Kisansing, Supra. 

(5) Ramachandra Narayan v. Draupadi, (1895) 20 Bom., 281. (Sargent, 
C. J.& Fulton, J.); Vishvanath v. Aba, Badricbarya v. Ramchandra, Rameing 
V. Babu KiiansiDg, all cited above, were referred to and considered. 



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148 Chapter VII| ss. 53 wd 54* Revision. 

Notice how far necessary : — It is illegal on the part of the 
Special Judge appointed under this Act to reverse the decree of a 
Subordinate Judge on review without giving a proper and sufficient 
notice to the party in whose favour the decree was passed.^ In a 
case decided a few months previously, it was held that notice to the 
parties was not necessary before the power of revision under s. 53 
could be exercised ; that section 53 does not expressly provide for 
such notice, and that s. 74 only made the Civil Procedure Code 
applicable to suits and proceedings before the Subordinate Judge 
and that under s. 75 no rule regarding notice had been made by 
the Local Government.^ 

Conflict between a District Judge and a Special Judge:— 

As the Special Judge is to be appointed to discharge in the place 
of the District Judge all the functions of the District Judge, there 
is thus no likelihood of the simultaneous exercise of the powers 
under this Chapter by both of them. A conflict of authority may, 
however, arise where the Special Judge is succeeded (in authority) 
by the District Judge (or vice^versa) and the succeeding Judge diflFers 
from the Judge to whom he succeeded. 

So also, a conflict may arise where A sues B to recover possession 
on the strength of a sale-deed which the defendant contends to be a 
mortgage-transaction, and the Court dismisses the suit holding it to 
be a mortgage ; and where another suit is brought by B against A 
on the same deed for redemption in which the plaintiff gets a decree. 
The matter in the first suit not being under this Act goes to the 
District Court in appeal, and the matter in the second suit (being 
under thi» Act) goes before the Special Judge in revision. In this 
case it is possible for the two Courts to come to di&erent and in- 
consistent conclusions, in which case it will be difficult to ascertain 
the effect of the one decree over the other. The best course for the 
Special Judge to avoid such anamoly, seems to be to stop 
proceedings until the question of sale or mortgage is finally disposed 
of in appeal. 

^1) Rupcband Khemchand v. Balvant Narajan (1887; 11 Bom., 591 
(West and Birdwood, J J.). 

(2) Vishvanath V. Aba 1886, P. J. H. (Sargent, C, J., and Nanabhai, 
J.). This case does not seem to be rt-terred to in the case reported in 11 
Bom., 591 cited above. The Judgment in this case says that the opinion of the 
Division Court consisting of West and Nanabhai, J J. on petition No. 89 of 
1884 was apparently the same. It seems this judgement of West and Nana- 
bhai, J J. is not reported even in the Printed Judgment series. 



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X49 

CHAPTER VIII. 

Registration by Village-Registrars. 



55. Appointment of Village-Registrars:— 

The Local Government may, from time to time, — 

{fl) appoint such persons as it thinks fit, whether 
public oflScers or not, to be Village-regis- 
trars for such local areas as it may, from 
time to time, prescribe; 

{b) direct the Village-registrar for any local 
area to discharge the functions of a Village- 
registrar for any other local areas con- 
currently with the Village-registrars of 
such other local areas ; and 

{c) delegate to any person, by name or in virtue 
of his office, the powers conferred on it by 
this section ; 

and may cancel any such appointment, direction 
or delegation. 

Commentary. 

The object of this Chapter :--The first object aiined at is to 
eptahlisli pif cautions against fraud by either debtor or creditor in 
their original transactions with each other, and so keep them on 
good terms and out of Uourt as far as possible. 

This ('hapfer is intended to meet some of the usual frauds, e.g. 
(1) forifing bonds, (2) withholding the consideration mentioned in the 
bond, (3) obt iniuij nuw bonds in satisfaction of old bonds and of 
decrees and nevertheless enforcing the latter, (4) tendering iu evidence 
false recepiis and false evidence of alleged payments, (5) pleading 
that bonds are false when they are really genuine. 

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150 Chapter VIII, 88. 55 Mcl 5<i« Registration. 

This Chapter provides that every instrument to which an 
agriculturfat is a party shall be written by or under the superin- 
tendence of a Village-registrkr, executed in his presence, and attested 
by him ; that the registrar shall give a copy of it to the party not 
entitled to the original^ and shall both endorse on the original 
whether transfer of consideration took place before him or not and 
mark for future indentification any instrument which such original 
supersedes. The reasonableness of such a measure is evidenced by 
the provisions for Notaries in France and most of the European 
Countries, and by the penalty in England on unauthorized persons 
practising as conveyancers. Instruments not so executed will be 
invalid. By these means every raiyat should at least know what 
he signs, and both parties should receive due proteetion.^ 

56. Instruments executed by agriculturist 
not to be deemed valid unless executed before a 
Village-registrar :— No instrument w^hicli purports 
to create, modify, transfer, evidence or extinguisli an 
obligation for the payment of money or a charge upon 
any property, or to be a conveyance or lease, and 
which is executed after this Act comes into force by an 
Agriculturist residing in any local area for which a 
Village-registrar has been appointed, shall be admitted 
in evidence for any purpose by any person having by 
law or consent of parties authority to receive evidence, 
or shall be acted upon by any such person ior by any 
public officer, unless such instrument is written by, or 
under the* superintendence of, and is attested by, a 
Village-registrar : 

Provided that nothing herein contained shall 
prevent the admission of any instrument in evidence 
in any criminal proceeding, [*] or apply to any instru- 
ment which is executed by an agriculturist merely as a 
surety [*] [^] or to any instrument required by section 

(1) Hon'ble Mr. Hope's speech, PrdceediDgs in Governor-Gdner»l% 
Legislatiye Council, 1879, pp. 134-135. 

[a— a] These words were added by Act XXIII of 1881, s. 12. 
[b] 8ee the first footnote on the next page. 



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Chaptei: VIl!, s. 56. Registration. l5l 

17 of the Indian Registration Act, (III of 1877), to be 
registered under that Act [^]. 

Oommentary. 

This section extends to the whole of British India} 

Sections 56 and 70. — ^Seotioa 56 only says that unless the 
instrntnent of the natnie described therein is \vTitten and attested 
according to the provisions of this Chapter, it will not he admissible 
in evidence^ nor will it be acted npon by any person anthoriied to 
receive evidence or by any Public Officer; but so far as the question 
of the creation of mortgage, Hen or charge of or upon immoveable 
property belonging to an agriculturist is concerned, s. 70 gays 
that the mortgage, lien or charge shall be invalid, unless created 
by a written instrument under the hand of the person creating it. 
No doubt, after the instrument is drawn out, it will not be 
admitted in evidence unless it is registered under s. 56.^ 

Distinction between sections 56 & 63A.— Section 63A 
relates only to documents required to be registered under s. 17 of 
Indian Registration Act ; while s. 56 relates, as is apparent from the 
words at the end of the proviso to the same section, to documents 
other than those covered by s. 17 of the Indian Registration Act, 
but falling under the description given in s. 56. 

In their effects, sections 63A and 56 are a little different. A 

document coming under s. 63A, but not registered, will not be 
received in evidence for the purposes given in s. 49 of the Indian 

Registration Act only ; while an instrument, falling under s. 56 

but not written or attested as required by the section, shall not be 

admitted in evidence for " any purpose by any person having by 

law or consent of parties authority to receive evidence, or shall be 
acied vpon by any public officer." 

^' Shall [not] be admitted for any purpose":— The plaintiff 
sued two defendants, one of whom was found to bo an 
agriculturist, on a Khatfi which contained an acknowledgment of 
liability to pay the amount .due to the plaintiff and also an 

[b— 1)] This portion was add6d by Act XXIII of 1886, a. 9. 

(1) See 8. 1 of this Act. 

0) Vide the remarks of Ranade, J. in 255 Bom., 788 (793), 



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152 Chapter VIII, s. 56. Registration. 

agreement to pay interest. The d^endant, who vras an agricaltarist^ 
was strnck off the reoord, and the plaintiff proceeded against the 
other, and obtained a decree against him for the amount clHimed, 
the Court being of opinion that thb section did not appi} and that 
the Khata sued on was valid and admissible in evidence tliongh 
not registered. The matter was referred under section 622 of 
Civil Procedure Code to the High (Jourt; it was argued jhat it was 
simply an irregularity but in effect it was found to be an iilt^gnlity, 
and the High C\)urt held that the Khata was au i' struniput 
purporting to evidence an obligation to pay money within the 
meaning of this section which aj>j»lied although one of th^ executants 
was not an agriculturist. The use of the words *'for any purpose " 
in this section shows that the instrujient in question, whiih was not 
written and attested in accordance with the section, could not be 
admitted in evidence in any case whatsoever — uoi even to enforce a 
liability against one who was not an agricultuiist.^ 

S. 56 of this Act & s. 35 of Stamp Act r—S. 56 as a whole 
may be compared with s. 35 (first paragraph) of the Indian Stamp Act 
and with proviso (d) of the same section. Under the luilian Stamp 
Act, an instrument not duly stamped will generally be admbsible in 
evidence in criminal proceedings, excepting those under Chapters 
XII or XXXVI of Criminal Procedure Code ; but such a saving 
provision does not exist in the proviso to s. 56 of this Act. 

"Executed by an agriculturist ":— The plain words 

of this section speak only of the execution by an agriculturist and 
clearly refer to the status of the person who actually executes the 
document. A document executed by an agriculturist in his own 
name and not as the agent of another, is inadmissible in evidence 
by reason of non-compliance with the provisions of this section.* 

Instruments falling under s. 56 : — (1) Every instrument 
which does not fall under s. 17 of I. R. Act and which purports 

(a) to create, modify, transfer, evidence or extinguish an 
obligation for the payment of money, or 

(1) .Dinsha Kuvarji v. Hargovandas Govardbandas, (1888) 13 Boin., 
215 (Bird wood and Parsons, JJ.) But see the remarks of ParaoDs, J. in 
Mahadeo v. Mahadu (1896) 22 Bom., 788 (792). 

(I) Bapuji Govind v. Mahadeo Narayen, 1897 P. J., 137 (ParsonB and 
Banade, JJ.). 



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Chapter VIII, s.'s6. Registration. 153 

(J) to create etc. a charge upon any properfy, or 
(c) which purports to be a conveyance or («l) a lease ; 

(2) and which is executed after this Act comes into forco, 

(3) by an ugricultarist (for himself and not merely as an agent 
or surety for another), 

(4) residing in any Local area for which a Village-registrar 
has been appointed* 

Release :— In a case a relea*»e, thongh not registered nnder 
Ihe InJiia Ragistration Act, ^a4 held admissible, as it was 
registered under s. 56 of this Act as a conveyance.^ 

Kabuliyat : — In 1891 the defendant passed to the plaintiff 
nn agreetneut before the Conciliator admitting his liabilify to the 
jJaiutift for nn a:i;ount due on a previous niorfgige and for a decretal 
debf, as also fo** a fresh advance then made. By the same document, 
p operry already ia possession of the plaintiff, as also an additional 
Lous •, were ii»(irt;»a^ed, with ptssession for the whole debt thus 
admitted due, the defendant agreeing to p:iy interest at a certain rate. 
Ti^e mortgagor was to {lay off' the debt within 4 ^ears, and in default 
])lHiutiff was to recover the same by sale of the property and to 
hold the defendant personally liable for any deficit. This agreement 
{Kahulit/at) was forwarded by the Conciliator to the Subordinate 
Jiid^e, who, however, refused to file it and consequently no decree 
vras drawn up ia the terms thereof. The agreement was not executed 
in accordance with the terms of the D. A. U. Act, nor was it 
registered thereunder. In a suit bi ought by the plaintiff for 
recovery cf the mortgage-debt by sale of the property or in the 
alternative for sin order directing the defendant to execute a 
mortgage in terirs of the said agreement and for a personal decree 
against the defendant for the amount due, held that as the 
agreement was not in itself a mortgage and as it was not registered 
or executed according to section 56, the Lower Courts were right in 
holding that the relation of mortgagor and mortgagee was not 
established between the parties and the Lower Courts had rightly 
refused the relief by >v y cf sale. IJdd also,— (P^r ParsonSy J.) 

(1} Hee Muhadu v. Ba^aji 8idu, (1893) 19 Bom., '239 (Sarg.-iit, 0. J. aud 
Candy, J.), ihe release ^as e.NOcuttd on l6tli June 1885, and tlini the Urtet 
pnrt of the proviso to •• 56 did nQt exist, it hmf added by tb^ Amtadinf 
▲ot ol 1886< 

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154 Chapter VIII, s. 56. Registration. 

that the agreement was not in itself a mortgage but simply evidenced 
an intention of the parties to create one and as such was not in- 
admissible under s. 56 of the D. A. K. Act, that even if it were 
intended by the agreement itself to create a mortgage, though the 
document was inadmissible to prove the interest intended to be 
created, it was admissible to show the contract entered into for the 
mortgage, and as such was valid and capable of being specifically 
enforced. Held {Per Eanade, J.) that under this section and s. 70 of 
D. A. R. Act, the agreement was not admissible in evidence and 
it was doubtful if the agreement could even be regarded as an 
iustrcment in \\Titing. But the oral agreement, which was sought 
to be given effect to by the aj.j'reeu>ent, could be proved aliunde. 
Such oral agreement so proved would not come within the 
prohioition of this section and s. 70, and could be directed to be 
specifically enforced.^^ 

A balance of account — signed by an agriculturist is an 
instrument which purports to evidence an obligation for the 
payment of money, and can not, therefore, be admitted in evidence, 
unless written by or under the superintendence of, and attested by, 
a Village-registrar as required by tLis section.^ It maybe observed 
that a difficulty will arise if such entries be held registrable under 
this section, for the entries ia account- bucks, when attested under 
sections 56 and 57 will become bonds according to section 3, oh 4 
(b) of Stamp Act (I of 189^) ; and will not be admissible in 
evidence, if not written upon a stamp*paper. It would thus virtually 
prohibit such entries being made at all.^ 

A will— needs no registration under this section. Wills 
can, however, be registered like othei documents. Hence the 
necessity for specially referring to them in section 61 as subjstituted 
inlbUo.* 



(1) Mahadeo Vinayak Vaidja v. Mahadu (1897) 22 Bum.^ 788 
(Far&uns and itauade^ JJ.). 

(2) Kanjee Ladha v. Dhonde, (1882) 6 Bom., 729 (Melvill and 
Kemball, JJ). 

(3) See the remarks of the Sub Judge referring this case to H^ C. at 
p. 730, of 6 Bom., 729 cited above. 

' {i) Sftli Kom Appa v. Nana, 1896 P. J. 707 (Farran, C.J. and Hosking, J). 



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Chapter VIII, s. 56 and 57. Registration. 155 

Sale - deed registered under Registration Act : — The 
plaintiff purchased a house from the defeadant, who was an 
agrionlturist, under a deed of sale dated 23rd Jane 1886. The 
deed was registered under the Registration Act (HI of 1877). 
On the 1st December 1886, the plaintiff sued to recover possesion 
of the house. The defendant pleaded that the sale-deed was invalid 
for want of consideration. Both the Lower Courts rejected the 
claim on the ground that the sale-deeJ, not having been executed 
according to the provisions of tliis section, was inadmissible and 
inoperative. In second appeal, it was contended for the plaintiff 
fliat, as the Amending Act (XXIII of 1886) came into force after 
the institution of the suit, but before the suit came on for hearings 
the plaintiff was entitled to the benefit of the proviso added to this 
section by the Amending Act, whereby it was provided that section 
56 was not to apply to instruments which were duly registered 
under the Indian Registration Act. Held that the proviso to this 
section did not apply, as it was not retro3|>ective in operation, as it 
involves not merely a change of ])roceuure, but also a change of 
existing rights. Held also, that the mere admission in the 
defendant's written statement of the execution of the sale-deed 
did not dispense with the necessity cf establishing affirmatiyely 
(he validity of the deed which was expressly itupugued by the 
defendant.^ 

Proof aliunde : — Defendants will uot be precluded by 
ss. 56 and 64 from proving the payment by any one of the ordinary 
legal modes of proof. These sections were not meant to protect 
land-lords; and so payment maybe proved otherwise than by a 
written receipt, though such be given,^ 

H57- Such instruments to be written by, or 
tinder the superintendence of, a Village-registrar 
and executed in his presence.— When any 

(1) Javanmal Jitmal v. Muktabai, (1890) 14 Bom., 516 (Scott and Telang^ 

JJ.). 

(2) Bala v. Shiva, 1897 P. J. 450 (Farran, 0. J. and Candj-, J.)-Kedari 
V. Oajai Kom Narayanrao, (1893) l8Bom., 630, at p. 693. See 111. (e) to 
t, 91 of the Evidence Act. 

[a] This section was 8ui)Stitutoi for the original a. 57 by Act XXIII of 
1^, B. 13. 



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156 Chapter Villi s. 57. Registratton. 

persons intend to execute any instrument to wliicli 
section 56 applies, all such persons shall appear before 
the Village-registrar appointed for the area in which 
the agriculturist, or, when there are several agricul- 
turists intending to execute the instrument, any one 
of such agriculturists, resides, and such Registrar, 
after satisfying himself in such manner as he deems fit 
as to the identity of the intending executants and 
receiving the fee (if any) prescribed by the Local 
Government in this behalf, and the stamp (if any) 
which may be required by law, shall write the instru- 
ment, or cause the same to be written under his 
superintendence; and, after reading the same aloud, 
or causing it to be so read, in the hearing of the 
intending executants, shall require them to execute it 
in his presence. 

Attestation of such instruments.— Every 
instrument so written and executed shall at the time of 
execution be attested by the Village-registrar, and also, 
if any of the executants thereof is unable to read such 
instrument, by two respectable witnesses. 

For the purposes of this section every executant 
of any such instrument shall appear in person before 
the Village-registrar; but every other party thereto 
may appear either in person or by any agent, being 
his relative, servant or dependant, whom he has duly 
furnished with a power-of- attorney, [^] executed and 
authenticated in such manner as the Local Government 
may, from time to time, by rule prescribe, [^] 
authorising him to appear and act on his behalf. 

Old Law. 

S. 57 of Act XVII of 1879 was:— 

AVh'Mi any pe»8ona, i ne of whom is an j'g'icnltnnpt. refiling in anr mch 

|pci1nrea, «?o^iro t.i ec^cnfe any such insfrnm nf, ihey shall prnBett th3ir> Ivs 

- * ' 

(b-b) These worda w^e iuBerted by Act Z^II ot 1882, B. l6. 

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Chapter vm,ss. 57 ftAdsS. Registration. 15^ 

before the Village-Kep:i%trar appointed by the Local Government for the 
area in vihlch f»uch agiicalturist, or, when there are several such agrioul nristi*, 
any one of soih agrio ilturistsi resides, and such registrar, after satisfying 
bims^h in such manner as he deems fit as to the identity of the parties and 
receiving from them the fee ( if any ) prescribed by the Local 
Government in this b»ha'f and the otamp (if any) which may be required by 
law, hhall write the instrument, or cause the same to be written under his 
•aperintendence, and after reading the same aloud or causing it to be to 
read in the hearin^p of the parties, shall require them to execute it in his 
presence. 

Every instrument so written and executed shall at the time of execution 
be attested by the Viliaiie-Registrar ai*d also, if any of the parties thereto is 
unable to read such instrument, by two n spectable witnesses. 

Commentary. 

** Any instrument to which s. 56 applies ":— The provisions 
of this section and s. 59 a'so npply to iastruments falling under 
8. 17 of 1. R. Act and s. 03 A of tliis Act.^ 

" Every executant shall appear in person ":— The Indian 
Registration Act doe^ not peiemptotily require the persoual 
attendance of the executant. It; sanctions the presentation through 
an authorized agent.^ 

58. Registration of instruments by Village- 
registrars :— Every Village-registrar shall keep a 
register of instruments executed before him in such 
form as shall, from to time, be prescribed by the 
Inspector-General of Registration. 

As soon as all the [^] intending executants have 
executed any instrument [^] before a Village- registrar, 
he shall make a copy of it or cause a copy of it to be 
made in his register, and shall deliver the original 
instrument to the party entitled to the custody of the 
same, p] 

Previous to delivery, the original instrument 
[^] shall be endorsed under the Village-registrar's 

(») KNtes. 63 A. 

(2) >ee 9^. 3i mid 36 of I. H. Act (lU of 1877). 

J« — a] Tiiese words wee hU »-ti nt. d t^r the oriuinal words by Act 
Uui 1 81,^ 14. 

(Is i ] Wuiils lepealeJ by Act :?OLIIl of 1886, s. 10 (1) and (2), are 
omitted. 

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15S Chapter VIII, 8S. sS and 59* Registration. 

signature, with the date oi registration, the name and 
residence of the Village-registrar, and the volume and 
page of the register in which the instrument has been 
registered. 

[*] A certified copy of any entry in the register 
shall be granted by the Village-registrar, free of charge, 
on the application of any party to the instrument to 
which the entry relates, or of his agent or representa- 
tive, and the copy shall be admissibe as evidence of 
the contents of the instrument. 

Old Law. 

The original words for which a sabstitation was made by Act 
XXIII of 1881 8. 14 were :— 

" Parties to any iiMtrament have executed it.'' 
The words repealed by Act XXIII of 1886, s. 10, (1) were : — 

" And a certified copy thereof to the other party, or to each of the othcur 
parties if there be more thati one." 

And the words repealed by cl, (2) of s. 10 of Act XXIII of 
1886 were : — ^** and each such copy>^^ 

59. Consideration to be fully stated in every 
instrumetit executed before a Village-registrar:— 
In every instrument written by, or under the superin- 
tendence' of, the Village-registrar, the amount and 
nature of the consideration, if any, shall be fully stated. 

The Village-registrar shall also endorse upon the 
instrument a note under his hand, recording whether 
or not the transfer of the consideration stated therein, 
or of any part thereof, took place in his presence. 

Previous instruments to be produced :— • 

If the instrument modifies, or wholly or partly 
supersedes, a previous instrument, such previous 
instrument shall be produced before the Village- 

[a] This para ww added by Act XXllI of 1886, s. 10 (3). 

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registrar and shall be fully described in the instrument 
to be executed, and shall be marked by the Village- 
registrar under his hand for indentification. 

[a] Production of copy of previous instrument 
when to be permitted*— Provided that if it is alleged 
that any such previous instrument is on the record or 
otherwise in the custody of a Court, or is lost, or has 
been destroyed, the Village-registrar, after ascertaining 
that such previous instrument was duly registered r 
may permit a certified copy thereof to be produced in 
lieu of the original ; and in every such case the follow- 
ing procedure shall be observed, that is to say : 

(a) the contents of the certified copy shall be 
fully described in the modifying or super- 
seding instrument, and the said copy shall 
be marked by the Village-registrar under 
his hand for identification, and shall then 
be delivered to the person who produced it ; 

(d) if the previous instrument is lost, or has 
been destroyed, and the registered entry 
thereof is in his custody, the Village- 
registrar shall endorse on such entry a note 
under his hand as to the modification or 
supersession of the said instrument ; 

(c) if the previous instrument is in the custody 
of a Court, or if it is lost, or has been 
destroyed, and the registered entry thereof 
is in the custody of another oflGicer, the 
Village-registrar shall forward a certified 
copy of the entry in his register relating to 
the modifying or superseding instrument to 
such Court or officer , with a report explaining 

[a] This proviso was added by Bom. Act I ^f 1^02^8. 3. 

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160 Chj4>ter VIII, ^. 59 to 6x* Registrational 

the circumstances, and such Court or cflScer 
shall on receipt thereof endorse on such 
previous instrument or registered entry a 
note as to the modification or supersession 
of the said instrument. 
60. Registration under this Act to be 
deemed equivalent to registration under Indian 
Registration Act, 1877.— Every instrument executed 
and registered in accordance with the foregoing pro- 
visions shall be deemed to have been duly registered 
under the provisions of the Indian Registration Act, 
1877; and no instrument which ought to have been 
executed before a Village-registrar but has been other- 
wise executed shall be registered by any oflScer acting 
under the said Act, or in any public office, or shall be 
authenticated by any public officer. 

N. B. — This sectioa applies to the whole of British ladian. 
(3oe s. 1). 

[a]6i. Superintendence of Village-registrars 
and custody and destruction of their records.— 

(i) The Local Government may appoint one or 
more officers to exercise by themselves :or their sub- 
ordinates a general superintendence over all Village- 
registrars, and may either make rules, or empower such 
officer or officers to make rules, from time to time 
consistent with this Act for regulating the proceedings 
of the Village-registrars and for providing for the 
custody of their records. 

(2) The Local Government may, by order to be 
published in the Government Gazettee, declare that 
any documents other than wills remaining unclaimed 
in any registration office in any district or part of a 
district to which this Act applies, for a period 

exceeding two years, may be des troyed. ^ 

[a] Thifl section was subsUtoted for tlie origmal •. 61 by Act VI of 1895| 

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Chapter Vtll, ss. 62 and 63. Registration. 161 

Old Law. 

The original section 61 was : — 

Villageregifltrars to be subordinate to the Inspeotor-Oeneral of 
E6gi8trati6n:-^The Inspector-General of Hi-gistiation shall exercise, by 
himself and his subordinateci, a general superintendence over all Village* 
registrars, and may, from time to time, with the previous sanction of the 
Local (Tovernment, make rules consistent with this Act for regulating their 
proceedings, and for providing for the custody of their records. 

Note : — For rules under this section, see Part 11 of this Book.^ 

62. Exemtion of instruments to which 
Government or any officer of Government is a 
party : — Nothing in this Act shall be deemed to 
require any instrument, to which the Government or 
any officer of Government in his official capacity is a 
party, to be executed before a Village-registrar. 

Note : — This section es^tends to the whole of British Indian 

(see s. 1.) 

63. Power of Local Government to make 

rules : — The Local Government may, from time to 
time, make rules regulating the appointment, 
suspension, dismissal and remuneration of Village- 
registrars, and prescribing the fees to be levied by them. 

Note : — For rules under this section, see Part II of this book.^ 



(1) See also B. G. G., part I,— for 1896, p. 957,— for 1898, p. 1178,— for 
1899, p. 979,— for 1902, p. 214,— for 1903, pp. 29, 155, 1592. 

(2) See also B. G. G. parti,— : or 1896, pp.971, 1178,— for 1902, 
p. 251,— for 1903, pp. 1254, 1340. 



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162 

CHAPTER VIII A-* 



Registration of Instruments referred to in section 17 of 
the Indian Registration Act^ i877. 



63A. Mode of execution by agriculturists of 
instruments required to be registered under Act 
III of 1877. — (i) When an agriculturist intends to 
execute any instrument required by section 17 of tlie 
Indian Registration Act, 1877, to be registered under 
that Act, he shall appear before the Sub-registrar 
within whose sub-district the whole or some portion of 
the property to which the instrument is to relate is 
situate, and the Sub-registrar shall write the instru- 
ment, or cause it to be written, and require it to be 
executed, and attest it and, if the executant is unable 
to read the instrument, cause it to be further attested, 
and otherwise act in accordance with the procedure 
prescribed for a Village-registrar by sections S7 and 59 
of this Act, and shall then register the instrument in 
accordance with the provisions of the Indian Registra- 
tion Act, 1877. 

(2) An instrument to which sub-section (i) applies 
shall not be effectual for any purpose referred to in 
section 49 of the Act last-mentioned unless it has been 
written, executed and attested in the manner provided 
in that sub-section. 

Boiex — See note to s. 56, headed : "ss. 56 and 63 a compared.'* 

* Chapter VIIIA was inserted by Act XXIII of 1886, a. 11. For 
Objects and li^asons, vide Bill No. 18 of 1886, para 7 ; and the discussion on 
the report of the Select Committee, p. 352 of the Proceedings in Governor* 
General's Legislative Council for 1886, 



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163 

Chapter ix 

Of Receipts and Statements of Account. 

The object of Chapter IX— is to to provide some safeguard 
against the Bawkar committing frauds, by requiring them to give 
receipts to agriculturists for all payments made by them, to render 
accounts and to furnish a pass-book in which the agriculturist's 
account will be periodically written up. 

64. Agriculturists entitled to written 
receipts : — The person to whom any agriculturist 
makes any payment of money in liquidation of a debt 
shall, at the time of such payment, tender to such 
agriculturist, whether he demand the same or not, a 
written receipt for the amount of such payment. 

If such payment is made under any instrument 
executed before a Village-registrar, the receipt stall, 
if the agriculturist so require, be endorsed on the copy 
of the instrument furnished to him under section 58. 

Commentary. 

S. 64 of this Act and s. 30 of the Stamp Act :— The 
receipt under s. 64 of this Act is to be given for the payment of 
money in liquidation of a debt whether the same is demanded or not 
by the agriculturist paying the money. While under s. 30 cf the 
Stamp Act, the receipt is to be given when demanded. Moreover, 
unlike s. 30 of the Stamp Act, s. 64 of this Act contains no limitation 
as to the amount for which the receipt is given* 

S. 64 does not malce any provision for the registration of a 
receipt, similar to that contained in clause (c), s. 17 of the Indian 
Registration Act. 

Sections 56 and 64 of this Act will not preclude an agricnU 
turist defendant, by any one of the ordinary legal modes of proof.^ 
'" ' " " ■ ■ . J — ,. 

(1) Kedari v. GHJai, 18 Bom., 690 ; see Bala v. Shiva P. J. 1897 p. 450, and 
ill (e) to s. 9X of the Evidence Act, 



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164 Chapter IX, ss. 64 and 65. Statements of account. 

65. Agriculturists entitled to have annual 
statements of account : — Any agriculturist by whom 
any money is due under any instrument shall, on such 
date in each year as the Local Government, having 
regard to local custom, may from time to time, by 
notification in the official Gazette, fix, be entitled to 
receive, on demand, from the person claiming under 
such instrument, a statement up to that date of his 
account under such instrument. 

Note : — The day of the Devali festival is fixed as the date on 
•which agrioulturists shall be entitled to receive or demand, from any 
person claiming money from them under an instrument, a statement 
of the account up to the said date.^ 

66. Agriculturists entitled to have account 
made up from time to time in a pass-book : — 

Any agriculturist in whose name an account is 
kept by any trader or money-lender shall be entitled 
to receive from such trader or money-lender, on 
demand, a pa'ss-book; and to require, from time to 
time, that his account up to date be written therein and 
authenticated by the signature or mark of the said 
trader or money-lender. 

An entry so made in any such pass-book of any 
payment made to the trader or money-lender shall be 
deemed to be equivalent, for the purpose of section 64, 
to the grant of a receipt for the amount so entered. 

No person whose account has been written in a 
pass-book as required by this section shall be entitled 
also to demand an account under section 65. 



(1) Notification No. 7058, B. G. G, for 1879, pt. I, p. 934. 

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Chapter IX, 8. 67. Penalty. l65 

67. Penalty for contravention of sections 64 

to 66, — Any person who, in contravention of section 
64, 65 or 66, refuses or neglects to tender a receipt or 
a statement of account or a pass-book, or to write, or 
cause to be written, any account or any part of an 
account in a poss-book, or to attest the same when so 
written, shall be punished for each such offence with 
fine which may extend to one hundred rupees. 

Note : — Compare also s. 65 of the Indian Stamp Act. 



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166 

CHAPTEK X. 

Legal Practitioners. 

\f\ 68. Pleaders, etc. excluded in certain 
cases: — No pleader, vakil or mukhtar, and no advocate 
or attorney of a High Court, shall be permitted to 
appear on behalf of any party to any case before a 
Conciliator or a Village-munsif : p] 

Provided that any party to any such case may be 
permitted, on reasonable cause being shown to the 
satisfaction of the Conciliator or Village-munsif, to 
employ any relative, servant or dependant who is not, 
and has not previously been, a pleader, vakil or 
mukhtar, or an advocate or attorney of a High Court, 
to appear either conjointly with, or in lieu of, such 
party. 

When a relative, servant or dependant appears in 
lieu of a party, he shall be furnished by him mth a 
power-of-attomey defining the extent to which he is 
empowered to act. 

Old Law. 

Section 68 of Act XVII of 1879 was :— 

No pleader, vakil or mukhtar, and no advocate or attornay of a High 
Court, ihall be permitted to appear on behalf of any party to any caie before 
a Oonciliator or a Village-munsif, or to any case cognizable by a Subordinate 
Judge under tbia Act, the iubject-matter whereof does not exoeed in amount 
or value one hundred rupees : 

Provided that any party to any iuch case may be permitted, on reason- 
able cause being shown to the gatisfaction of the Conciliator, Village-munsif 

[a] This section was substituted for the original s. 68 by Act XXIII of 
1881, 8. 15. 

[b] Words repealed by Act XXII of 1883, s. 17, ar6 omitted. 



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Chapter X, ss. 68 and 69. Legal Practitioners. 16? 

or Subordinate Jadge,to employ auy relative, servaut or dependant vfho if not 
and baa not previoufily been a pleader, vakil or mnkbtar, or an advocate or 
attorney of a lligh Court, to appear either conjointly with, or in lieu of 
sucb party. 

Provided also tbat a Subordinate Judge may permit a plender vakil, or 
mukhtar, or an advocate or attorney of a High Court, to appear before 
him on behalf of any party to any case of the description aforeiaid in which, 
for reasons to be recorded by him in writing, he deems it desirable that the 
party should have sucb assistance. 

When a relative, servant, or dependant, appears in lieu of a party, he 
shall be furnished by him \( ith a power-of -attorney defining the extent to 
» bich he is empowered to act. 

The words omitted by Act XXII of 1882, s. 17 are ;— 

'< The subject-matter whereof does not exceed in amount or value one 
hundred rupees." 

69. Power of Court to appoint pleader for 
agriculturist : — When in any suit or proceeding before 
a Subordinate Judge under this Act to which an agri- 
culturist is a party, any pleader, vakil or mukhtar, or 
any advocate or attorney of a High Court, appears on 
behalf of any party opposed to such agriculturist, the 
Subordinate Judge, if he is of opinion that such agri- 
culturist has not the means of obtaining proper pro- 
fessional assistance, may, with the consent of such 
agriculturist, direct the Government pleader or any 
other fit person [who is willing so to do] to appear on 
his behalf. 



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168 



CHAPTER XI. 

Miscellaneous. 



70. Mortgages, etc., to be valid only when 
written : — No mortgage, lien or charge of or upon any 
immoveable property belonging to an agriculturist shall 
be valid unless it is created by an instrument in writing 
under the hand of the person creating such mortgage, 
lien or charge. 

Nothing in this section shall apply to any mort- 
gage, lien or charge created by mere operation of law, 
or in favour of the Government or of any officer of the 
Government in his official capacity. 

Commentary. 

In order to provide some safeguard in the interest of agricul- 
turist-debtors, this section is intended to invalidate all ir.ortgages 
created by an agrionlturist otherwise than by a written iostrument.^ 

See note to s. 56, heading : — ** S* 56 and s. 70.'' See also 
22 Bom. 788, cited under s. 56, p. 154 of this book. 

• [a] 71. Bar of application of section 258, Act 
XIV, 1882 -.—The last clause of section 258 of the 
Code of Civil Procedure shall not apply to payments 
out of Court made in any proceeding under this Act, 
in any case where an acknowledgment by the 
judgment-creditor for the same is produced, or when 
the payment is either admitted by him or proved. 

(1) See the Statement of Objects and Reasons, Bill No, 12 of 1879. Seo 
also 8« 56 and note thereunder. 

[a] Thia section was inserted by Act VI of 1895, s. 10. 

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Chapter XI, ss. 7z and 7zA. I59 

Old Law. 

Section 71 of Aot XVll <.f 1879 was :— 

Every iofltiumf't.t executed betoie hig Act come* i -to forf** unl ptir- 
portiig to create any mortgage. 1 t-n or chur^e ot or upon a'y in ni \ealiie 
profierty belun^ing to an agriculturist, 8hali be deemed to be an instrument 
required by section 17 of the Indian Registration Act, 1877, to be registered; 
and any such instrument which before the passintr of this Act was not so 
required to be registered may, notwitbstunding anything contained in the 
said Indian Registration Act, 1877, be registered under that Act within one 
year from the date on which this Act comes into force. 

Every Village- Registrar appointed under this Act shall be deemed to be 
a Sub-Registrar for the purpose of so registering such instruments ; and the 
local area for which be is appointed shall be deemed for such purpose to be 
his sub-district. 

Nothing in this section applies to an instrument purporting to create a 
mortgage, lien or chari^e in favour of the Government or of any officer of the 
Government, in his official capacity. 

This section was repealad by Act XXIII of 1881. A«< indi- 
cated in the foot-note to the section the present section is an insertion 
made by Act VI of 1895, s. 16. 

[A case under old s. 71 : — The period occupied in obtaining 
registration under s. 71 cannot be deducted in computing limitation. 
The Village-Registrar has power to enforce the attendance of an 
executant under part VII of Act III of 1877.^] ^ 

[a] 71 A. Rate of interest allowable on taking 
an account :— In taking an account under section 13 
or in any suit under this Act where interest is chargea- 
ble such interest shall be awarded at the following 
rates: — 

{a) the rate, if any, agreed upon between the 
parties or the persons (if any) through whom 
they claim, unless such rate is deemed by 
the Court to be unreasonable ; or 

(y Wamanrao y. Sambhu, 1882 i*. J., 261 (Surge.it, O.J. & Melviil, J.). 
[a] This section was inserted by Act VI o£ 1895, i» 17. 

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i^ Chapter XI, s. ^xA. Law <Sf interest. 

(b) if such rate is deemed by the Court unreason- 
able, or if no rate was agreed upon, or, when 
any agreement between the parties or the 
persons (if any) through whom they claim, 
to set off profits against interest and assess- 
ment and similar charges without an ac- 
count, has been set aside by the Court, 
such rate as the Court may deem reason- 
able. 

Old Law. 

For old law see the next note. 

Commentary- 
Scope of the section — It will be seen that this section was 
added by Act VI of 1895, which Act repealed s. 14 as it stood in 
Chapter III of this Act. It Is apparent that this section 
merely re-enacts the law embodied in the repealed section 14. 
The object aimed at by the Legislature is to make the provisions 
applicable not only to s. 13 of this Act, bat to the whole of 
thid Act. 

" Where interest is chargeable*':—'' So long as the old s.l4 
nestled nnder the shadow of s. 18, it could not have been misunder- 
stood as a direction that interest must always be allowed. There are 
oases where the parties enter into no agreement as to interest, and 
where custom and Interest Act do not contemplate the payment of 
interest. All we want to do is to regulate the rate of interest when 

Interest can be allowed only in the following oases^:—(i) Where 
there is an express promise to pay interest, (ii) where from the course of 
dealings between the parties it may be inferred that such was the 

(1) See the remarks of Hon'ble Mr. Lee Warner. — Proceedings in the 
supreme Legislative Council for 1895, p. 173. 

(2) For this note we are indebted to the article on the law of interest 
appearing in 8 Bom. L. K., Nua. 5 and 7. See also Chaku Modan v. Dullabh 
Dwarka, 9 B. H. C. H., 7. Haji Mahomad v. E. Spiner, 24 Bom , 5l0. 
finnoda Soonduri Dassee v. Oodhubnath Roy, 11 W. R. 125. Miller v. 
Bwlow, 14 M. I. A., 209. 



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Chapter XI, 8. 71 A. Law of interest i/i 

Intention, (ill) where tbere is a contract for the payment of money 
on a certain day, as on bills of exchange, promissory notes, &o., (iv) 
where there is anneoessary and vexatious delay caused by the mis- 
conduct of the person bound to pay, (v) where the person liable to 
pay obtained money by fraud, (vi) when by the wrongful act of the 
defendant, plaintiff is deprived of money which was actually making 
interest, (vii) where it is proved that the money has been used and 
interest has been actually made by the debtor and (vii) lastly where 
there is a Legislative enactment allowing interest.^ 

The contract to pay interest may be express or implied. It 
maybe implied from usage or from the course of dealing between 
the parties or other circumstances. *' There needs not either the 
antiquity, the uniformity or the notoriety of custom, which in 
respect of all these becomes a local law. The usage may still 
be in course of growth ; it may require evidence for its support 
in each case ; but in the result it is enough if it appears to be so 
well known and acquiesced in that it may reasonably be supposed 
to have been an ingredient tacitly imported by the parties into the 
contract."^ 

Interest is chargeable on the award of costs or mesne 
profits.^ But in a suit under Chapter XXXIX of the Civil 
Procedure Code, the plaintiff is not entitled to recover any interest 

(1) The interest Act AXiCII of 1839 enacts that upon all debts or sums 
eertain payable at a certain time or otherwise, ihe Court before which such 
debts or sums may be recovered may, if it shall think fit, allow interest to 
the creditor at a rate not exceeding the current rate of interest from the time 
when snch debts or sums certain were payable, if such debts or sums be 
payable by virtue of some written instrument at a certain time, or if payable 
otherwise, then from the time when demand of payment shall have been 
made in writing, so as such demand shall give notice to the debtor that 
interest will be claimed from the date of such demand until the term of pay- 
ment, provided that intertst shall be payable in all cases in which it is now 
payable by law. 

See also ss. 309, 210, 211 and 222 of ihe Civil Procedure Code, sections 
85 to 88 of ihe T. P. Act, ss. 79 & 80 of the Negotiable Instruments Act 
XXVI of 1881, and s. 73 illus. (/*) nnd s 74 illus. {d) of the Contract Act. 

(2) Jugyfomohun Ghose v. Maiiickcbund, 7 M. I. A,, 263. 

(3) See sections 211 and 222 of C. P. Code. But see 9 B. H. C. B., 7 

cited ante and PiUai v. Pillai, 2 I. A. 219. 



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172 Chapter XI, 8. 7zA. Law of interest. 

noiless suoh interest is specified in the promissory note itself, or to 
give evidence regarding any agreement to pay interest.^ 

Interest after due date :— There is no rule of law that, 
upon a Contract for the payment of moaey on a day certab, 
with interest at a fixed rate down to that day, a farther contract for 
the continuance of the same rate of interest is to be implied.^ 
Although in cases of this class interest for the delay of payment 
post diem ought to bo given, it is on the principle, not of implied 
contract but of damages for a breach of contract. The rate of 
interest which the parties have agreed to maintain during the term 
of their contract may well be adopted, in an ordinary case, as a 
proper measure of damages . for subsequent delay .^ But where the 
rate is excessive, or the creditor has delayed in bringing the suit, the 
Court would reduce the stipulated rate of interest.^ 

Interest after suit :— The section gives to a Court wider 
scope for the exercise of discretion in the matter of the fixiug 
of the rate of interest than that given by s. 209 of the Civil 
Procedure Code, Wherever s. 209 applies, the discretionary power 
given to Courts can only be exercised so as to adjust or fix the rate 
of interest from the date of the suit The rate agreed on must be 
awarded upto the date of the suit, unless the rate is exhorbitant, or 
there is fraud or extortion on the part of the creditor^ or weakness 
or utter ignorance on the part of the debtor,^ 

The discretion given to Courts by s. 209 above is taken away 
from them by Transfer of Property Act (ss. 86-88 and 93) and in a 



(1) Bhupatiram v. Sourendra Mohan, 30 Cal , 446, See ss. 79 and 80 of 
Act XXVI of 1881 (Negotiable Instruments Act). 

(2) See Deeii Dayal Lall v. Het Narain Singh, 2 CaL, 4l3 Nivas Ram v. 
Udit Narain, 13 All., 330. 

(3) Cook V. Fowler, L. R. 7 H. L. 27. (1874). See also Moti Singh v. 
Ramo Hari Singh, 24 Cal., 699 (F. B.) 

(4) Nanchand Hansraj y. Bapu Saheb, 3 Bom., 131. (Melvill and 
Komball, JJ.). 

(5) Koondun Lall v. Ameer Hassunkhan, II M. I. A. 120 ; Kamini 
Sooi.dari V. Kali Prosunno, 12 Cal., 225; Alodhosing v. Kashiram, 9 AIL, 228. 

(6) Lalli V, Ram Prasad, 9 All., 74. 



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Chapter XI, s. 7zA. Law of interest. "iTi 

Buii by a mortgagee to reoover the money due on his mortgap:6, the 
plaintiff is entitled to inieresi; at the rate specified in the mortgage- 
deed upto the date of decree^ and a Civil Court has no discretion to 
refase to award such interest,^ provided, of coarse, the rate be such 
that DO valid legal objection can be taken to it« 

Interest— how far a matter of discretion^:— Under this 
Act where interest is chargeable in accordance with the principles 
discussed above the (Joort is bound to award it. This section, 
however, gives the Court discretion to regulate the rate of interest 
from the begining of a transaction. This discretion, unfettered, as it 
is, by any of the provisions of the T. P. Act or C. P. Code, is sound 
and reasonable and capable of correction by a Court of appeal.' 

** Such rate as the Court may deem reasonable":— What 
the Court may deem reasonable will depend upon the circumstances 
of each particular case. The mercantile rate of interest in Bombay 
is generally 9 per cent, par annum on all book jdobts.^ In one 
case' the Lower Court had allowed the rate of 9^ per cent, in 
another case® the rate allowed by the Court below was 12 per cent. 
In both the cases the stipulated rate was higher, but the High Court 
did not interfere, and allowed the interest as awarded. The rate 
of interest which the Court generally allows is from 6 to 12 per 
cent, per annum. It is, however, Important to note that as high 
interest means bad security, so bad s^^curity, means high interest, 
and the money lender's security is under this Act more than ever 
weak, seeing that he cannot touch his debtor's person, ncr his house, 
nor his clothing, nor his cattle, nor (unless the debt b specially 
secured) his land. 

(1) Surya Narain v. Jogendra Naraio, 20 Cal., 36o Ohaturbhai v^ 
Harbhamji, 20 Bom., 744. See Carvalho v. Nurbibi, 3 Bom., 202* 
Dhaudbhai V. Dhaudbhai, 14 Bom., 113. MaDgniram v. Dliowtal Roy 12 
Cal., 569. 

(2) Lalla Bunseedur v. Koonwar Biudeseree Dutt Bin/)i, 10 M. I. A. 
454. 

(3) Juggomohun (Ihose v. Mamckchund, 7 M. I. A., 263. Of. also 8. 2*3 
of 8p. Re. Act. 

(4) Ramlal v. Dulab Dass, Perry's 0. C, 220. 

(5) Ramchandra Tukaram, 1885 P. J. 142. 

(6) (Jopal V. Appa, 1882 P. J. 246; in this case the mortgagee had raiaed 
no objections to the rate awarded. 



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174 Chapter XI| ss. 7zA and 72; Law of iaterest. 

Stipulation for high interest is not always a penalty :-^ 
When the interest charged in a mortgage bond is very high and the 
debtor is of fall capacity, the general role is that the Court will not 
grant relief withoub proof of unfair dealing or undue pressure or 
influence on the part of the creditor, or that the creditor has taken 
unfair advantage of the debtor's weakness and necensities, or that the 
debtor was overreached, tricked or deceived, or that he was ignorant 
of the unfair nature of the transact ion , The case of a female debtor 
in fiduciary relation to the creditor and of an expectant heir are 
exceptions to the general rule. The mere fact that the debtor was 
in urgent need of money is not sufficient in itself to raise the pre* 
sumption that the creditor took unfair advantage of his necessity.^ 

Simple interest at a high rate is not in itself a penalty 
within the meaning of s. 74 of the Contract Act.* But a 
stipulation to pay higher rate of interest from the date of bond in 
case of default b always considered as a penalty.^ However, a 
stipulation for enhanced interest from the date of default may not 
necessarily be a stipulation by way of penalty. Whether such a 
stipulation is penal or not, is question of fact and not of law.^ 

As to the cessation of farther interest by deposit or tender, see 
s. 18 of this Act, 8. 378 of the G. P. Code and ss. 83 and 84 of the 
T. P. Act. 

72. [a] Limitation :— In any suit [^j of the 
description mentioned in section 3, clause (w) , [b] for 

(1) Umeshchandra Khasnavis v. Go\t^ Lall Muttafi, 31 Cal , 233. 

(2) Prayagkapri v. Shyam Loll, 31 Cal., 131 ; in this case (on a 
mortgage) the rate of interest allowed till the day fixed in tlie decree for 
payment was the contract rate of 75 per cent, per arnum. In Satischunder 
Giri V. Hemchunder MookhopadhN a, 29 Cal., 823 the interest allowed . 
on an unsecured debt of Rs. 175 was at the oontnict rate of one rupee 
per diem, 

(3) Trimbak Tukaram v. Bhagchand, 27 Bim., 21 / s. c. 4 Bom, L. R., 
713. See also 25 AIL, 169. 

(4) Abdul Gani v. Nandlal, 30 Cal., 15. See explanation and illustration 
(d) to s. 74 of the Indian Contract Act, 

(a) This section was substituted for the criginal s. 72 by Act XXIII of 
1881, s. 17. 

(b-b) This reference was substituted for the original reference by Act 
XXIII of 1886, s. 12 (1). 



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Chapter XI, s. 72. Limitation. 175 

the recovery of money from a person [^] who at the 
time when the cause of action arose was an agri- 
culturist [^] in any of the districts of Poona, Satara, 
Sholapur and Ahmednagar, p] the following periods of 
limitation shall be deemed to be substituted for those 
prescribed in the second column of the second schedule 
annexed to the Indian lyimitation Act, 1877 (that is 
to say) : — 

(a) when such suit is founded 'on a written in- 

strument registered under this Act or any 
law in force at the date of the excution of 
such instrument,— twelve years ; 

(b) in any other case, — six years: 

[^] Provided that nothing in this section shall — 
(z) apply to a suit for the recovery or money 
from a person who is a surety merely of the 
principal debtor if the principal debtor was 
not, at the time when the cause of action 
arose, an agriculturist [^] in any of the dis- 
tricts aforesaid, [^] or 
(u) revive the right to bring any suit which 
would have been barred by limitation if it 
had been instituted immediately before this 
Act comes into force. 

Old Law. 

S. 72 of Act XVU of 1879 was :— 

" 111 any suit ajjainst an agriculturist under thig Act for the recovery of 
money, the following periods of linaitation shall be deemed to be substituted 
for those prescribed in the second column of the second schedule annexed to 
the Indian Limitatio n Act, 1877 (that is to say);— 

(a) Words repealed by Act XXIII of 1886, s. 12 (3), are omitted. 

(bb) Theso words were added by Act VI of 1896, s. 18. 

(c) This proviso was suhstituted for the original proviso by Act XXIII 
of 1886, 8. 13 (3). 

(d-d) These words were added by Act VI of 1895, s. 18. 

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176 Chapter XI, s. *J2. Limitatioti* 

(a) V\ hej|^ Buck suit is baaed on a written instrument registered under 
this Act, or any law in force at the date of the execution of such iiistru meat, 
twelve years-; - 

(b) in any other cose, — six years : 

Provided that nothing herein contained shall revive the ri^ht to bring 
any suit which would have been barred by limitation if it had bfeen 
iuslituted immediately before this Act comes into force." 

For this sectiou, was substituted the following section hj Act 
XXIII of 1881. , ' 

Act XXIII of 1881, s. 72. 

In any suit under this Act for the recovery of money from a person not 
beifuj merely a surety fof* Hie principal debtor, who at the time when the 
<5ause of action arose was an agriculturist, the following i^oriods of limitation 
shall be deemed to be substituted for those prescribed in the second column 
of the second schedule annexed to the Indian Limitation Act, 1877, (that is 
to say):— * 

(a) When such suit is founded on: a written instrument registered under 
this Act or any law in force at the date of the execution of this instrument, — 
twelve years ; 

(b) in any other case, — six years. 
Proviso : — as in the old section of 1879. 

For the words ** under this Act " above, were substituted the 
following: — "of the description mentioned in s.3, clause (w)^ by 
Act XXIII of 1886, s. 12 (clause 1). 

The words from the above seotion : — " not being merely ti 
surety for the principal debtor" were repealed by Act XXIII of 
1886,s. la^Cclause 2). 

S. 19 of Act XXII ^ 1882 :— 

" Notwithstanding anything contained in the foregoing sections of this 
Act, the period of limitation for any suit instituted within 2 years from the 
day in which this Act comes into force, and to vvhich^ if this Act had not 
been passed, secton 72 of the D. A. Act 1879, would have applied, shall be 
the period prescribed by that section." 

Commentary. 

Object of s. 72:— Section 72 has been introduced into the Bill, 
bS there appears to be a pretty general consensus of opinioa to the 
effect that the difficulties of the raiyat are much aggravated by the 



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Chapter XI, s. 72. Limitation, 177 

present Jaw of limitation which compels the mcaieyJeiader at very 
short intervals to sne him or take a &esh bond, either of which 
steps commonly entails a considerable addition to the debt.^ 

Scope of s. 72 :— The section applies under the following 
conditions : — 

(a) The suit must be of the description mentioned in s, 3 
clause (w); and it must be against a person who at the 
time when the cause of action arose was an agricultorist 
in any of the four districts specified m the section. 

If the suit is brought against a *suret3s the principal debtor 
must, when the cause of action arose, be ai^ agriculturist in any of 
the four specified districts. 

, (b) As stated in the proviso («) to the section, the right to 
sue must not have been barred. 

(c) In order to get twelve years limitation, the suit must be 
founded'on a registered instrument. 
" Of the description mentioned in s. 3, cl. (w)" :— This 
reference has been substituted for the original reference — suits 
under this Act— in order that it may include all suits on bonds, 
IJxatas^ written acknowledgments, and the like, and exclude suits 
for rent, or damages, etc., to which there is no necessity of applying 
a special law of limitation."^ 

" In any of the districts": — When this section was amended 
by ActYI of 1895 the Select Committee observed "It is not ex- 
pedient to extend the special limitation-period in force in four 
districts, to any other district or part of a district to which the 
Act may be extended and in which the ordinary limitation law 
will run." 

S. 72, cl. (a) :— " A iwritten statement" The plaintiff 
brought this suit on a writing which ran as follows : — *« Receipt 
taken by Vasudeo from Xlamkrishna, an agriculturist: I have borrowed 
Ks. 1045. from you from time to time for my private expenses ; I 
have passed you no bond for this money. Today I have taken 

(1) See Statement of Objects and Heasons, Bill No. 13 of 1879. 
(•3) See the Statement of Objects nnd Keasons, Bill No. 18 of 1886, pftra 8. 
to 

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178 Chapter XI, s. 72. Limitation. 

B& 890 more, making Bs. 1,435 in all. For that I will give yoa 
tk bond 15 days hence. I have received the money.'' Held^ on a 
constmction of the above writing, that it was not a mere acknow- 
ledgment, bnt was an agreement founded on an old debt and a ne^Y 
loan covered by it and it contained a distinct undertaking that a 
debtor would pass a bond after 15 days ; that the suit must, 
therefore, be regarded as based on a written instrument and that it 
would fall within the provisions of s. 72(a). Held siiso that the 
document was duly registered under this Act, s. 58.^ 

Suits against surety :— (a) under Act XVII oC 1879. ^^ 
a case, a question was referred to the High Court, whether under 
s. 72 of this Act an agriculturist surety was liable although the 
suit was barred as against the principal debtor, and it was heldt 
thai the surety being an agriculturist, was still liable, in as much as 
s. 72 applies to all agriculturists, whether principals or sureties, in 
the districts afifected by the Act.^ 

(b) Under the Act as modified by Act XXIII of z88z t- 
Where an agriculturist who was surety for the principal debtor, was 
made co-defendant in a suit on a money-bond, held that in his case 
the period of limitation was the ordinary period of three years, and 
not the period of six years allowed by s. 72.^ 

On the 2nd January 1882, the plaintiff sued the defendants, 
who were agriculturists, on a bond dated the 21st September, 1877, 
payable in four months, which had been executed by the second 
defendant as surety /or the first. The suit was instituted under a. 3, 



(1) Vasudeo v. Ramkrishnarao, (1900) 24 Bom., 394; e. c. 2 Born, L. JR., 
122 (Ranad* and Crowe, JJ.) ; Shankar v. Mukta, (1898) 22 Bom., 
513, distiaguished. 

(2) Hajarimal v. Krishnarao, (1881) d Bom., 647 (Weati'opp, 0. J. and 
Birdwood, J.) lo this case it was suggested in the judgment that an 
exception in the case of a surety may be introduced ; the section was 'accord- 
ingly amended in 1881 (Act XXIII of 1881). 

(3) Ganesh Raoji t. GoVind Gopal, (1885) 9 Bom., 461 (Sargent, CJ 
and Birdwood, J.). 



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chapter XI, 8. 72. Limitation. i;^ 

ol. (w) ; held for the reason stated in Kushalbhai tr. Kahfm^ that die 
suit was barred as against the second defendant.^ 

S. 17 of Act XXIII of 1881 was retrospective. The object, 
the Legi^Iatare had in enacting s. 17 of Act XXIII of 1881, was to 
correct the mischief which had beqn unintentionally occasioned bj 
the too general language of s. 72 of the Act of 1879. The scope 
of Belief Acts of 1879 and 1881, as well as the circumstances which 
led to the passing of s. 17 of the Act of 1881, forbid that the real 
intention of the Legislature was opposed to a retrospective operation 
of the section. The object of the D. A. R. Acts is to benefit agri- 
culturists, and has been effected in a great degree in disregard of the 
vested rights of their creditors. It cannot, therefore, be presumed, 
but rather the contrary, that the Legislature, when it passed the 
Act of 1881 to remove the hardship which it had inadvertently 
imposed on agriculturist sureties by the Act of 1879, would do so 
witii any regard to the possible inconvenience or injustice which 
might be caused to creditors by a sadden return to the old period of 
limitation.^ 

Operation of s. 72 as amended in 1881 and 1882 :— A as 

principal, and B and as sureties, obtained a lease from D of 
certain land, dated 30th July 1880. A, B, and C were agriculturists 
within the meaning of this Act and the lease was registered under 
s. 56 of the Act. On 1st March 1884 D sued A, B, andCi^ 
recover the rent under the lease. Held that, under s. 72 as amended 
by Acts XXIII of 1881 and XXII of 1882, the extended limitation 
did not apply to tl\e surety^ even though the principal debtor was an 
agricidturist. The words " not merely a surety for the principal- 
debtor " (which enact the exception to the extended limitation given 

(1) Sobbachand v. Bhagubai, 1882, P. J. 145 (Melviil and Nanabhai, 
JJ»), dissented form in Agarchand v. Gandaya, 1884 P. J. 50. 

(2) 6 B(»n. 26. The principle laid down in this case was that an Act of 
limitation, although it is a law of procedure and generally h^ a retrospective 
effect^ is not to be bo construed any more* than any other Act, when such 
retrospective application would destroy vested rights or inflict sach hardship 
or injustice as could not have been within the contemplation of the 
Legislature. 

(3) Agarchand v. Gandaya, 1884 P. J. 50. Sobbachand v. Bhagubai 
1862, P. J, 145, dissented from. 



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180 Chapter XI. ss. 72 and 73- Umitation. 

by that section) are not restricted to the case in which the principle 
debtor is a non-agrioultntist. The lease, however, having be an 
registered under s. 54, held, that it was under s. 60 to be deemed to 
have been registered under the provisions of the Indian Registration 
Act, and that, therefore, by article 116 of the Limitation Act, the 
period of limitation applicable to the surety was six years from the 
date of default by the principal debtor to pay rent.i 

In a suit arising out of a cause of action of the 17th October 
1880 aod 8th July 1881, held that the decision of the question of 
limitation with reference tos.72 of Act XVII 1879, s. 17 of Act 
XXIII of 1881 and s. 19 of Act XXII of 18S2, must depend upon 
whether defendant was an agriculturist as defined by Act XXIII of 
1S81, when the cause of action arose.^ 

73. Decision as to whether person is an 
agriculturist, final.— Repealed by Act VI of 1895, s. 3. 

Old Law. 

The repealed section 73 was : — 

73. Becision as to whether person is an agriculturist, final :— 
The decision of any Court of first instaice that any person is or is not an 
agriculturist shall, for the purposes of this Act, be final. 

Repeal of section pendente lite :— Where an appeal against 
the decree of the Sabordinate Judge was filed, s. 73 made the 
decision of the Subordinate Judge that the defendant was an agri- 
culturist final. Pending the appeal, the section was repealed, held 
that on the hearing which took place after the repeal, the District 
Judge had power to come to the conclusion that the defendant was 
not an agriculturist and thus overrule the decbion of the Subordin- 
ate Judge on the point. This course was in accordance with the 
general rule, that Statutes whigh efEeot changes in procedure are in 

(1) Kosu Shivram v. Vithu Kanaji, (1884) 9 Bom., 320 (Sargent, O. J. 
and Kemball, J.). 

(2) Gangaram v. Nemchand, 1889 P. J., 313. (Sargent, C. J., and 

Hart, J,). 

» For cases under this section before its repeal see Gyanmal v. Ram- 
Chandra 1896, P. J., 342; Malhar v. Ohinto, 1887 P.J. 38; Madhavrao v. Raoji 
1885, P. J. 150 ; Mahalingapa v. Nemchand, l887, P. J. 77. See also Ganga- 
ram V, Punamchand, 1896, P. J., 212 and Raji y. Jaaardan; 1885 P. J., 105. 



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Chapter XI, ss. 73A and 74. Miscellaneous. 18I 

iheir operation, unless the contrary appears on the face of the enact- 
ment, retroactive in the sense that the provisions of sach Statutes are 
applicable to proceedings already commenced at the time of their 
enactment. In Re Matansi Kcdianji.^ This rule has already 
been recognized by this Court in the case of earlier changes in the 
same Act. An instance will be found in Shivram v. Kodiraj ^ 
And the same principle has been observed in the case oi Anand- 
ehunder v. Nitai Bhoomij ' The repeal of an Act of a section 
relating to procedare is not the repeal of an Act within the 
meaning of s, 6 of Act I of 1886.* 

H 73A. Certain agricultural produce ex- 
empted from attachment) etc :— When the Collector 
has taken any immoveable property of a judgment 
debtor or insolvent into his possession under section 22 
or section 29, he may, by an order in writing, direct 
that any other such property not so taken shall be 
deemed to be reserved for the support of the judgment- 
debtor or insolvent and the members of his family 
dependent on him, and may rescind that order. 

While any such order continues in force in respect 
of any immoveable property, agricultural produce grown 
on that property shall not be attached or sold in exe- 
cution of a decree passed whether before or after this 
Act comes into force, and shall not vest in the receiver 
appointed in any insolvency proceedings. 

74. Civil Procedure Code to apply in Sub- 
ordinate Judges* Courts :— Except in so far as it is 
inconsistent with this Act, the Code of Civil Procedure 
shall apply in all suits and proceedings before Sub- 
ordinate Judges under this Act. 

(1) 2 Bom., 148 

(2) 8 Bom., 347. 

(3) l6Cal.,429. 

(4) Gaogaram v. Punamchand, 1896 P, J. 212, (Farran, C. J. and 
Fulton, J.y Cf. Gyanmal v. Ramchandra, 1896 P. J. 842 

(a) Thia section was inserted by Act XXII of 1882, s. 18. 



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182 Chapter XI, ss. 75 and 76> M iscellaneous, 

i\r.i?.— For illustrationB to this section ; see Chapter IV and the 
oases noted below.^ 

75. Additional power to make rules :— The 

Local Goveniment may, from time to time, make all 
such rules as it may deem necessary for carrying out 
the provisions herein contained. 

For notification under this and the foUozoing section^ see part 
II of this book.2 

76. Rules to be published :— All rules made 
by the Local Government under this Act shall be 
published in the official Gazette, and shall thereupon, 
in so far as they are consistent with this Act, have the 
force of law. 

(1) Dulichand y. Dhondi, 5 Bom., 184 cited ante, s. IB and 13. 
Badaricharya v. Ramchandra, 19 Bom., 113. Cited under Oh. VII. 
I^amsing v. Babu Kisansing, 19 Bom, 116, do. 
Visvanath v. Aba, 1886 P. J. 11, do. 
Ramlal v. Kamchandra, 1885 P. J. 250, do. 
Ramchandra v. Draupadl, 20 Bom., 281, do. 
Mohan v. Tukaram, 21 Bom., 63, cited under chapter III. 

Narayandas v. Kondi, 19 Bom., 20»2. Gangadhar v. Mahada 
8 Bom., 20, cited in chapter VI. 

(2) See also notification No. 7189B, B. G. G, for 1896, pt. I, p. 974 ; 
and No. 2730, B. (i. G. for 1881, pt. I, p. 2JJ2. 



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PART II. 

CONTAINING 

The Notifications issued under or bearing on 

THE 

Dekkhan Agriculturists' Relief Act 

XVII of 1879. 



24 

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Contents of Part 11. 



—4 
—11 

—15 

11 

12 

12 

-13 

-15 
56 

-17 

-18 
-19 
19 
-21 



-26 



Table of Doiifications ••. iii — xii 
Bales for the managemeot of 
immoveable property by the 

Colleotor 1 

Procedure before Village- 
mnnsifs ••• ••• 4 

Rules for the guidance of coa 

ciliators 11 

The form of the Kabuliyat 

under 8. 43 

Demand of certificate... 

Service of notice 

Table of charges ... 12 

Records and accounts ... 13 
Village registration Rules 16- 
Preliminary 

(a) Register-book ... 16 

(&) Index of Register ... 17- 
{e) Claim-note & Day-bookalS 
\d) Cash-book... 
(e) General provisions 19 

Procedure 

(/) Execution an J registration 
of instrument under ss. 57 
and 58 21- 

(ff) Provisions applicable to 
registration by the Village- 
registrars under b.58. 26—29 

(h) Copies and searches 29—30 

(i) Returns 30 



(j) Remittances 30—31 

(k) Correspondence 31-32 

(0 Refund of Fees 32—33 

Appendices A to L. of Rules 
under s. 18 ... 33—48 

Appointments, salary, &o« of 
District Inspectors & Village 
-Registrars 49—53 

Appendix to rules under 
s. 63 ... 4„ ... 54 

Rules for carrying out the 

provisions of this Act 55 — 56 

Description of suits to be 
heard by the Subordinate 
Judges of Poena ... 56 

Description of suits to be 
heard by Subordinate 
Judges of Hyderabad, 
Shikarpur, Hala, Larkhana 56 

Form of summons to defendant 
in Suits under this Act 57 

Execution of decrees ».. 58 

Concessions in process fees 58 

Records ••• ... 58—59 

Reduction and remission 
of Court-fees ... 60—61 

Exemption under the 
Stamp Act 61—62 



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Table of Notifications. 



Subject of Notification. 



Number and date 
of notification. 



Publiahed at the 
following page 
ofpf.I, of B.G. 
Q. for the year 
of the notifica- 
tion. 






Extension of provisions 
of Chapter III and of 
Ss-2, 7, and 71A of 
the Act to the province 
of bind. 

Extension of the pro- 
visions of Ss. 2 and 
20 of the Act to the 
Khandesh District. 

Extension of the pro- 
visions of Ss. 2 and 20 
of the Aot to all parts 
of the Presidency of 
Bombay (except Aden) 
in which those sections 
are not already in force. 

Extension of the pro- 
visions of Chapters V & 
VI and Chapter VII (so 
far as it relates to the 
proceedings of the 
Village-Mansifs and 
Conciliators ) of the 
Act to the District of 
Khandesh. 



1663 (13.3-01) 



3154 (14-5.02) 



278 (21-1-03) 



620 (3-2-03) 



490 



776 



89 



144 



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iv 



Table of Notiiicatiott8. 



Fablished at the 

following page 

Bateof pt. I, of B.CJ, 



si 

® .2 






Subject of Notification. 



Number and 
of notification. 



G. for the year 
of the notifica- 
tion. 



S.1 



S.6 



Ss.29 
& 75 



S.87 



Exteosiou (£ the pro- 
Tisions ofSs. 7, 11,21, 
23andOhaptersV,VI, 
VII, and s, 71A to all 
districts of the Bombay 
Presidency excluding 
those to which they are 
already extended and 
excluding Aden & the 
City of Bombay. 

Description of suits to 
be heard by the Sub. 
ordinate Judge of 
Poena. 

Description of suits to 
be heard by the Sub- 
ordinate Judges of 
Hyderabad, Shikarpur, 
Hala and Larkhana. 

Rules for the manage- 
ment by the Collector 
of immoveable property 
of which he takes pos- 
session under s. 22 or 
29 of the Act &c. 

Rules for regulating 
the procedure of Village 
— Munsifs. 

Addition to rules 7, 21 
and 26 of the above 



4144 (15-8-05) 



7057 (22-11-79) 



1664 (13-8-01) 



892 (4-2-85) 



7685 (17-12-79) 
5585 (18-8-80) 



1038 



984 



490 



176 



1001 



708 



8 of 
pt.I. 



56 



1—4 



4-11 



5,9, 
10 



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T^Me&fNottficaticms. 



/v 



Publisbed at the 
following page 
of pt. I, of B.U. 
G. for the year 
of the notilica- 
tion. 






Snbjeot of Notification. 



Nnmbeir and Date 
of notification. 



O OB 



S.37 



S. 38 



Addmga newmle 20A 6545 A (30 9-98) 
to tbe above rules. 



Amerding and adding 
a new rule 21A to the 
above rules. 

Substituting a new 
para for the second 
para of rule 7 of the 
above rules. 

Appointments of Gon- 
oiliators in the Districts 
of Foona,Satara, Shola. 
pur, Ahmednagar and 
Khandesh in snperces- 
sion of all previous 
noitfications* 

S. 40 Vesting certain Con- 
ciliators in the 5 Lis- 
tiicts aforesaid mth 
powers described in s. 40 

S, 49 Table of charges to be 
made by Conciliators; 
and rules as to the re- 
cord and accounts to 
be to=»pt by them. 

Rule providing for time 
within which certifi- 
cates under s. 46 shall 
1)0 demanded*. 



3634 (3-7-03) 



4431 (14-8.03) 



3632 (21.705) 



894 



859 



1009 



939-^946 



3332 (5-7-05) 



7536(17-12.89) 



864 



8125 (7-12-80) 



999 



12 



1072 



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^1 



Table of Notifications. 



is 



Subject of Notification. 



S. 55 



S« 49 Bnle regarding th^ 
service of the written 
notice under s. 44 of 
the Act. 

Charges to be levied by 
Conciliators from ap- 
plicants for sammonses 
issued under s. 40 of 
the Act. 

List of Village-registra 
tion circles in the Dis- 
tricts of Ahmednagar, 
Poena, Satara and 
Sholapur. 

Transfer of Villages 
from V. R. Circle of 
Pimpalgam Dhepa in 
the Sangamner Taluka 
to that of Sangamner* 

Division of V. R. 
Circle of Pangri in the 
Barsi Taluka of the 
Sholapur District and 
reconstitution of two 
circles of Pangri* 

Including the Village- 
ofNimboni in V. R. 
Circle of Ghirdi of the 
Saogola Taluka of the 
Sholapur dbtrict* 



Number and Date 
of notification. 



Published at the 
following page 
of pt. I,of B. G. 
G. for tbe year 
of tbe notifica- 
tion. 



5370 (29^8.82) 



7095 (8-10-84) 






6710a(26.10-82) 
872 D (3-2-99) 



5330 (13-7-04) 



682 



784 



12 



13 



6975 (12-9-04) 



6035 (26-7-05) 



871 
149 



948 



1241 



928 



• These notns. are issaed in modification of Notns. No. 6710A, &; 7398. 



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table of Natificationd. 



Vll 









PublSsl^TXttEr 


bi^ tsa 




Subject of Notification. 


Nnmber and Date 
of notification. 


following page 
of pt. I, of B.G. 
G. for the year 








of the notifica- 


^■5 


cm 






tion. 


<£'s 


S. 55 


Amalgatnatioa of oer- 
tain Tillage-Registra- 
tioo Circles in the 
Poona & AhmeJnagar 
Districts. 


1671(13-3-86) 


261 




3J 


Modifying the Village- 
Registratioa Circle 
arrangements in the 
Ahmednagar & Poona 
Districts. 


3555 (17-6-86) 


534 


• •• 


>J 


Amalgauiatioa of the 
Village — Registration 
Circles in Ahmednagar 
District. 


3089 (25 586) 

3774t (29-6-86) 

4454 (3-8-87) 

4060 (28-7-88) 


471 
573 
699 
651 


• •• 

• •• 

• •• 






3691 (1-6-01) 


1031 


• •• 


» 


Transfer of Villages 
from one Village- 


4683 (11-8-86) 
3072 (29-3-92) 
7013 (11-9-95) 


676 
303 
947 


• •• 

••• 




Registration Circle to 


1630 (7-3-01) 


487 


••• 




another in the Ahmed- 


4995 (17-7-01) 


1225 






nagar District. 


3691 (1-6-01) 


1031 


• •• 


J) 


Abolishing a Village- 


7398 (11-10-93) 


951 






Registration Circle in 


1630 (7 3 01) 


487 






the Ahmednagar Dis- 


4995 17-7-01) 


1225 


• •• 




trict. 












3016 (18-5-86) 


439 








2275 (18-4-87) 


340 




fy 


Amalgamation of Vil- 


3223 (4-6-87) 


479 


• •• 




lage-registration circles 
in the Poona District. 


8923 (25-11-89) 
7668 (4-11-03) 
1276 (18-2-90) 


1007 
1392 
141 


• •• 

• •• 






4442 (25-6-90) 


575 


• •• 



t Expunged by notification No. 1630 ( 7-3-01 ) 



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vMl 



fable of NdtiflcatilMS. 



Publislied at the 
following page 
ofpt.I,ofB.G. 
G.for the year 
of the notifica- 
tion. 



I** 



Subject of Notification. 



Namber and Date 
of notification. 



'^ M 



S. 55 



Transfer of the head 
quarters of the Village- 
Registration Circle of 
Ukadgaon to Belwandi 
Badrnkh in the Shri- 
gouda Talnka of the 
Ahmadnagar Dbtrict. 



Transfer of the head 
quartets of the ViWage 
Registration Circle of 
Narayandoho ia the 
Ahinednagar Talnka 
to Chiohondi ( Mahad 
patlaohi ) in the same 
Village — Registration 
Circle and Taluka in 
the Ahmednagar Dis- 
trict. 



Transfer of the head 
quarter-station of the 
Village — Registration 
circle of Jalalpur-Easiii 
in the Karjat Taluka 
of the Ahmednagar 
District and altering 
its designation to Kbed 
Rasin. 



9695 (2-12-96) 
903 (3-2-97) 



1236 
164 



5144 (10-8-98) 



722 



2561 (31-3. 97) 



603 



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Table of Notifications. 



%x 









["ablUlied at tbo m ^ 


II 

? .s 




Number and date 


following page 
of pt. I, of B.G. 
G. for the year 


UI 


Hubjeut c£ notification.. 


of notification. 


"S2 


1- 






of the notifica- 
tion. 


i; 


S. 55 


Transfer of the head 
-quarters of the Village 
Registration Circle of 
Khatgaon-Takli in the 
Ahmednagar District 
to Hingangaon, and 
altering its designation 
to Hingangaon Circle. 


5520 (23.7-97) 


1365 


• . • 


9> 


Alteration in the name 
of Village-Registraticn 
Circle in the Poena 
District. 


6140 (25-1C-86) 


949 


••• 


99 


Reconstitntion of Vil- 
lage-Registration circle 
in the Taloka of Bhim 
thadi and in the Petha 
of Dhond, and abolish- 
ing the Village-Regi- 
titration circles of Petas 
in the Bhim thadi 
Talnka of the Pooaa 
District. 


6797 (23 8-92) 


848 


«•• 






1644 (6-3-85) 


320 




}9 


Transfer of Villages 


1995 (17-3.85) 


337 






from one Village-Regi- 


5987 (22-8-90) 


879 


• • . 




stration Circle to 


7668 (4-11-03) 


1392 






another in the Poena 


8986 (16-12-90) 


1300 


• • • 




District. 


5674 (4-7-94) 


698 


.»• 






1129 (10-2-97) 


218 


• • • 






6123 (31-8-99) 


1308 


••» 



25 



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Table of Notifications. 



^4 



8. 55 



Subject of notification. 



Niiml)«r and Date 
of Notification. 



Modifying the local 
areas formiDg Qm Vil- 
lage-Begbtration drcle 
ia the Satara Plstriot. 



Amalgamation ofTil> 
lage-Begistration circles 
in the Satara District. 



Amalgamation of Yil 
lage-Registrfttioa circles 
in the Satara district 

-OOQtd. 

Transfer of Villages 
from one Village regis- 
tration Circle to 
another in the Satara 
District. 

Transfer of the head 
qaarters of the Village- 
Registratioo Circles of 
Mandrnlkola from 
Mandrnlkola to Mal- 
dan in the Patan 
Talaka of the Satara 
District. 



3970 (9-6-85) 



2178 (3.4-86) 
4805 (18-8-86) 
4196 (21-7-87) 
5733(18-10-88) 
722 (29-1-89) 
4881 (14-7-90) 
11C4 (11-2-91) 
5438 (26 6-94) 
8160(3-10-94) 
2615 (1-4-95) 
6898 (2-9-96) 

9685 (2-12-96) 
1674 (2-3-97) 
7964 (3-11-97) 



4891 (23-8-86) 
7043 (5-9-92) 
7311 (14-9-92) 
7447 (20-9-92) 
7438 (22-9-96) 

2402 (3-4-94) 



L'ubliBlied at tlie 
following page 
ofpt. I, ofli.G 
G. for the year 
of the notifica- 
Hon. 



wrr 



771 



359 
710 
651 
838 
84 
691 
140 
660 
lOOfi 
414 
896 

1234 

413 

1835 



722 
908 
923 
958 
975 

276 



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Table of-Notifications. 



XI 



■S 



M •»* 



Subject of Notification. 



Number and Date 
of notification. 



Publiaiied at the 
following page 
of pt. I, of B.G. 
0. for the year 
of tie notifica- 
tion. 



o 



S. 55 



B. 61 



Amalgamation of Vil- 
lage-Registration Cir- 
cles in the Sbolapur 
District. 

Amalgamation of Vil. 
lage-Kegistration Oir- 
cles in the Sholapur 
District — contJ. 

Transfer of Villages 
from oue Village Regi- 
tratlon circle to nuother 
in the Sholapur district. 

Transfer of the head 
quarters of the Village 
liegistration circle of 
Hatidi in the Bangola 
Taluka of the Sholapur 
District. 

Rules for regulating 
the proceedings of Vil- 
lage-Registrars and 
for providing for the 
custody of their records 

Errata in the above 
rules. 

A new rule for rule 40 
of the above rules. 

Amendment of K'os. 
16, 19 and 40 of the 
above rules. 



6187 (25-10-86) 

6598 (15-11-86) 

384 (18.1-87) 

630 (29-1.87) 

4447 (2-8-87) 
7183A(13-12-87) 
3664(12-7-88) 
1044 (9-2 91) 
8720(3-2-99) 

2684 (15-4-85) 
6286 (5 9-85) 
5826 (11-10-86) 
1954 (12-3 89) 
5118 (21-7-90) 
872U (3-2-99) 

7381 (1-10-89) 



7189 (11-9-96) 



9381 (24-11-96) 

4457 A (27-6-99) 

768 A (4-2-02) 



931 

989 

49 

74 

699 
979 
601 
134 
148 

.509 
1117 

912 
204 
723 
148 

839 



937 



1178 

979 

214 



16-48 



18,19 

24^7 

47 

33 



20,21 
33 



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xii 



Table of Notifications. 



CO 



Subject of Notiftoation, 



Number aoj Date 
of Notilioatioo. 



Published at the] { 
following page 
of pt. I,of B.G. 
G. for the year 
of the Notifica- 
tion. I 



A n 6w note to number 
24 of the above rales. 

Substituting a new form 
of iuedi^ in appendix 
6 to rule 5 of the 
above rules. 

Addition to rule 17 of 
the above rules. 

Rules regulating the 
appointment &o. of the 
District Inspectors and 
Village-Registrars. 
Errata in the above 
rules. 

Alteration in No. 47 of 
the above rules. 
Alteration in tiie above. 
Errata in the above. 
Fixing a date for the 
agriculturists to receive 
or demand a statement 
of their account from 
their creditors &c. 

Rules for carrying out 
the provisions of the 
Act. 

Rule requiring Subor- 
dinate Judges to scru- 
tinize documents rece- 
ived from Conciliators. 



24 (6-1-03) 
1128(16-2-03) 

7683 (4 11-03) 
7189A(119 96) 

9381 (24-11-96) 

912 (11-2-02) 

6794 (29-9-03) 
7317 (1910-03) 
7058(2211-79) 



7189 6(11-9-96) 



2730* (30-4-81) 



.29 
155 

1392 
971 



1178 
251 

1254 

1340 
934 



974 



232 



♦ The ruld in this notification is superaedeil by s. 44 of the Act, 



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Part IL^-Notifications. 

Rules for the Management of immoveable 
property by the Collector. 



■ tW gOOOJtjaM 



In exercise of the power conferred by section 29 and 75 of this 
Act the Governor-in-Oouncil is pleased to make the following tules* 
for che management by the Collector of immoveable property of 
which he takes possession under sections 22 or 29 of this Act and 
generally for carrying ont the provisions of this Act in respect of 
such property, 

1. When a Court directs the Collector to]^take"possession of any 
immoveable property of a judgment-debtor or insolvent, it shall 
transmit with its order copies of all docnments, orders or proceedings 
which it' may think necessary to make the Collector aware of 
essential facts concerning the po-^ition of the jndgroentdebtor or 
insolvent, and the nature and extent of the property to be mimaged 
by him. 

It shall also at any time furnish the Collector with copies of 
any documente, orders or proceedings other than those transmitted 
which the Collector for the purpose aforesaid desires to see. 

2. The aforesaid copies shall be prepared and sent to tlie 
Collector free of all costs to the parties, being made by the Court's 
establishment. 

3. On receipt of the Court's order, the Collector may either 
himself proceed to execute it, or may refer it, for disposal, subject 
to his supervision and control, to any of his subordinates not lower 
in rank than a Mahalkari. 

4. The Collector or other oflScer, to whom he so refers the 
Court's order, shall appoint a day for hearing any representations 
which the parties may desire to make, and shall cause a written 
notice to be served on each of them of the day so fixed. 

• Notilication No. 892, dated 4th February 1896, B, G. G. for 1895, 
part I, pp. 176, 177. 

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2 Rules for the Management by the Collector. 

On the appointed day, or as soon thereafter as may be, the 
Collector or other officer aforesaid shall, after such inquiry as he 
deems fit, determine whether any portion of the property to which 
the Gotirt's order relates, is required for the support of the judgment- 
debtor or of the insolvent, and the support of the members off his 
family dependent upon him. 

The dedsion of any officer other than the Collector under this 
rule shall be subject to confirmation by the Collector. 

5. Possession of the property, or of so much of it as is not, in 
the opinion of the Collector, required for the support of the persons 
aforesaid, shall then be taken by the Collector, or by the officer 
aforesaid on behalf of the CoUeotor, and the fact of possession having 
been so taken shall be published by written notice to the parties, and 
by proclamation on or near the properly in such manner as the 
Collector or other officer aforesaid deems suitable. 

6. If the fact of the judgment-debtor or insolvent being 
entitled to possession be disputed, or if any objection be raised to 
the Collector's taking possession of the property or of any portion of 
it, the Collector shall refer the parties concerned to the Court, and 
pending such reference shall stay proceedings in respect of so much 
of the property as is in dispute. 

7. If after possession of the property has been taken under 
rule 6, any order in writing is made by the Collector under section 
73A of the Act, directmg that any other immoveable property not so 
taken shall be deemed to be reserved for the support of the judgment* 
debtor or insolvent, and the members of his family dependent on 
him, such order shall be published in the same manner as the fact of 
possession having been taken. 

8. The Collector or other officer aforesaid, may from time to 
time require by written notice the attendance of the parties in order 
to ascertain their wishes, or to obtain information which he may 
consider necessary to enable him to provide satisfactorily for the 
execution of the Court's order ; and if any party fail to attend iq 
pursuance of such notice, the Collector or other officer aforesaid may 
decide the matter in his absence, and he shall not be entitled to be 
heard afterwards with respect thereto. 



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Rules for the Management by the Collector. 3 

9. If the property of which possession has been taken by or on 
behalf of the Collector is in the occupation of a tenant paying rent 
or a shue of the produce to the judgment-debtor or insolvent, the 
Collector or other officer aforesaid shall issue a written notice to 
snch tenant, requiring him to pay the rent or share to him for so 
long as his tenure subsists. 

If there be no tenant in possession, or, on the expiration of the 
tenure, if the land is in the occupation of a tenant, the Collector or 
other officer aforesaid may let, for a term not exceeding the seven 
years to which his management extends, with or without payment of 
a premium, the whole or any part of the said property to the highest 
Udder ; or may let on farm or manage by himself or another, the 
whole or any part of such property, or may adopt partly one of such, 
modes and partly another or others of such modes as he may deem 
most convenient and profitable. 

The person to whom the Collector or other officer aforesaid lets 
the property or through whom he manages it, may be the judgment- 
debtor or an insolvent, or any person who holds a decree against the 
judgment-debtor or insolvent or a third party as may appear most 
convenient and beneficial to the parties. 

10. The Collector shall from time to time reader to the Court 
an account of all monies which come to his hands or to the hands of 
^ officer aforesaid, and of all charges incurred in respect of the 
property in his management, and shall hold the balance at the 
disposal of the Court. 

Such charges shall include all debts and liabilities from time to 
time due to the Government in respect of the property, or any part 
thereof, and the rent, it any, from time to time due to a superior 
holder in respect of such property or pari 

11. Where the management is at an end and all monies which 
have come into the Collector's hands have been disposed of, he shall 
re-transmit the papers received by him under rule 1, together with 
the proceedings connected with the management of the property, to 
the Court by post or in such manner as may be most convenient 

12. Every notice issued by the Collector or other officer 
aforesaid under these rules, may be served in the manner prescribed 

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4 Pfo$«Kl^rf b9^r9 Vai#«e-Munsi|B. 

hf neo&on 191 pf the Bombay Land Bevapua Code, or iS i^ person 
to bet served is a party to tb^ prooeediDgs in the Cpar( and ha^ a 
plaadcir, by forwardiag a oopy thereof to thei Qourt tp be served uppi| 
the pleader. 

Procedure before Village-Munsifs. 



In exorcise of the ppwer conferred by section 37 of this Act the 
Qoy©rnoi^-in-^ouncil is pleased to pres'iribe the following rules fpr 
r^gplating the procedure of Village Munsifs * : — 

1. — Every suit in a Village-Munsifs Court shall be institnted 
by presenting to the Village-Mnnsif in person a written plaint in 
the vernacular language of the district, which should contain the 
foUowiAg particulars : — 

(a) The name, religion, caste, profession and place of abode 
of the plaintiff. 

(b) The name, religion, caste, profession and place of abode 
of the defendant. 

(c) ' A statement of the circumstances which have led to the 

institution of the suit. 

{d) A list of the plaintiff's documents, if any, and of his 
witnesses, and whether he requires the Village-Munsifs 
assistance to procure their attendance, or whether he will 
produce them himself on the day to be appointed under 
rule 5. 

2. If the plaintiff sues upon a document in his possession or 
power, he must produce it with his plaint. 

3. The Village-Munsif shall reject the plaint at once in the 
following cases : — 

(a) If it appears to the Village-Munsif that the subject of 
the plaint is not within his jurisdiction. 

(b) If it appears to him after questioning the plaintiff that 
the suit is barred by the Limitation law. 

♦ Notification No. 7635 of 1879, B. G. G. for 1879 pt. 1, pp. lOOl, 1002. 
at amended by subsequent notifications : 5585 of 1880, 6585 A of 1898, 4431 
ftnd 3634 of 1903. 



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Proe94ure beft>re ViUftge-Mun^if^. 



4^ If the VUIage-Munsif a4mit8 the plaint, he shall number 
and register it in a Register to be kept for the purpose in the 
fpllovring form ;-^ 



Bute of 

present- 
ation. 


No. of 
^ui(. 


PlaintiflPs 
name, caste, 
and resi- 
dence. 


Defendant's 
name, cagte, 
and resi- 
dence. 


Nature 

of 
claim. 


Final order 
and date 
thereof. 


How exe- 
cuted. 


1 


2 


3 


4 


5 


G 


7 

















5. When he admits a plaint, he shall fix a convenient day, if 
possible 'within seven days from its institution, for the trial of the 
suit, and he shall require the plaintiff to appear with his documents 
and witnesses, if any, on the day so appointed. He shall also forthwith 
with the least practicable delay, send for the defendant and 
personally explain to him the nature of the claim, informing him of 
i^e day fixed for the trial and requiring him to be present in person 
on that day, unless the defendant admits the correctness of the claim 
and his own liability, in which case the Village-Munsif shall record 
the admission in full and require the defendant to sign or put his 
mark to the same, and shall also sign it himself. 

6. If the defendant does not admit the claim, the Village- 
Munsif shall require him to name his witnesses, if any, and to state 
whether he will himself produce them or require the assistsmce of 
the Court to procure their attendance, and shall warn him to be 
present in person with his documents and witnesses, if any, upon the 
appointed day. 

7. Whenever it is necessary to procure the attendance of any 
defendant or witness, the Village-Munsif may require the village- 
officers to produce such person befor^j him ; and it shall be the duty 
of the village-officers to obey the reqaisition of the Village-Munsif. 

* Any Village-Munsif specially authorized in this behalf by the 
District or Special Judge may, in cases where other means fail, 

* This para is substituted by Notification No. 4431, B. G. G. for 1903, 
pt.l, page 1009, for the para which was added by Notification No. 5585 (1880). 



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6 Procedure before Vilkge-Munsifs- 

exeroise the powers of a Civil Court for the purpose of enforoiag the 
attendance of defendants and witnesses. 

8. On the day appointed for the trial, unless the defendant has 
previously admitted the claim under rule 5, in which case be may 
at once pass a final order, the Yillage-Munsif shall first of all 
examine the parties, or the persons, if any, permitted to appear for 
them under section 68 of the Act, and shall peruse the documents, if 
any, produced on either side, in order to ascertain the point or points 
in issue, and whether the defendant has any just answer or defence to 
the suit; and shall then, if necessary, examine the witnesses on either 
side ; and may also send for and examine any other person who may 
appear to him likely to be able to give useful evidence as to the 
matters in dispute ; and shall then proceed, at once, if possible, to 
record his final order in accordance with the just merits of the case, 

9. If the plaintiff fails without reasonable excuse to attend 
with his proo& or omits without reasonable excuse to adopt measures 
to procure the attendance of his witnesses, the Village-Munsif shall 
reject the plaint. 

10. If the defendant fails to appear, the Village-Munsif shall 
adjourn the trial to an early day to be fixed by him, and shall 
meantime take all the measures in his power, with the assistance of 
the village-officers, to procure the atiendance of the defendant on such 
adjourned date ; he shall not decide the suit without examining the 
defendant, unless for special reasons to be recorded by him in writing 
in his final order. 

11. If the witnesses on either side or any of them fail to attend 
on the appointed day, the Village-Munsif may, after taking the 
evidence of those that are present, if he considers it necessary for the 
purpose of justice and for arriving at a satisfactory decision, adjourn 
the trial for such period as may be necessary to procure their 
attendance. 

12. The Village-Munsif shall examine the parties and their 
witnesses, if any, orally, and it shall not be necessary for him to take 
down their evidence in writing or make notes thereof; but if he does 
not do so, he shall embody in his final order the aubstance of the 
evidence, together with the points in dispute, and his decision 
thereon, specifying the amount, if any, awarded to the plaintiff 
tSuch final order shall be deemed to be the decree^ 



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Pfdcedure before Viliage^Munsife. )r 

13. If his decision is in favour of the plaintiff, either wholly or 
in part, he may direct the defendant to pay the amount found due, 
by instalments not extending over a longer period than twelve 
maaths. 

14. In no case shall he award more than seems to him, on a 
fall consideration of all the circumstances and past history of the 
debt to be justly and equitably due. 

15. The final order shall be written in column 6 of the 
Register mentioned in rule 4 ; and the Yillage-Munsif sball give a 
copy thereof, under his signature, to either party asking for the same. 

16. Every order whether rejecting a plaint or allowing or 
disallowing a claim shall be endorsed briefly by the Village-Munsif 
on the plaint. 

17. If the decision awards the plaintiff's claim in whole or 
part, the defendant may pay the money due by him under the decree 
into the Yillage-Munsifs Court and in such case shall be giv(n a 
receipt for the same, and it shall be the duty of the Village-Munsif 
to cause such money to be paid over to the plaintiff and to require 
his receipt for the same, and to enter the fact of such payment in the 
last column of the Register. 

18. If the dec ree is satisfied in whole or in part out of Court, 
it shall be the duty of the plaintiff to certify the fact to the Village- 
Munsif, and when he fails to do so, the defendant may apply to the 
Village-Munsif, who shall then make inquiries ; and if he finds it 
proved that the decree has been so satisfied, shall refuse to execute it 
further. The necessary entry to denote satisfaction under this rule 
shall be made in the Register. 

1&, The decree-holder may, at any time within the period 
allowed by the limitation law, apply to the Village-Munsif for 
execution of his decree or such portion of it as may remain 
unsatisfied, such application must be in writing and must state that 
the decree of which execution is sought has remained unsatisfied, in 
whole or in part, as the case may be. 

20. In the case of a decree which allows payment by instal- 
ments, any default by the judgment-debtor entitles the decree-holder 
to apply for execution. 

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8 



Procedure before ViUage-Munsi^. 



t 20. A. If the Village-Mnasif reoeives snob an applioaiioii ba 
is mentioned in rales 19 and 20 from a decree-holder, be shall 
number and register it in a Register to be kept for the purpose in 
the following form : — 

liegister of applications for execntion of decrees in the Oonrt cf 
the Yillage-Mnnsif of in the Taluka 

of the District during the year. 



T 






O 



3 . 

o 2 

o 



a 

s 



cs'3 



Q 

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m es 

a S S 

2 ^ c 

5 C 73 

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to So . 

a 03 o 

CQ 0} S 
fe 1^ *> 

ft ".8 

•A a 
.** o 



c6 

fl 

S3 
O 

I ^ 



o «> 



-•^ i :3 - -^ 


















a 






cs 






t^ 












es 




M 


Is 


f? 




-a 


^ 


eS 







t*4 


s 







**"• 




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>H 


•J 


s 





c8 


s? 




a> 




%^ 


>* 


K 


tH 


■*» 


Q 





S 


«M 


«ii 


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'C 




4^ 


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<1; 


-2 




W 



00 
00 




'^ 


1^ 


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B 



CO 

1 

1 

00 




a 


0" 


5 

1 


i 

00 


iH 

►-a 


CO 


Si- 

si 




kO 


f—l 


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P4 


3 fl 


























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rH 














Si 





























K 



21. On application as aforesaid by the decree-holder the 
Village-Munsif may, after making such inquiry as he deei^a 

t This rule was added by Notification No. 6545 A (1893), B. G, G. for 
a8«8, pt 1, p. 894. 

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Ptocedure btfof e vnta^e*Muosifs. 9 

heoessary, oattse the decree to be executed by the attaobmenjt aud 
sale of any mov*^able property withia the loo>il are* of hi** jurisiiiction 
belongtn;^ to aud in the pos-seasioa of the jadgineat-dobt.ir, except 
such property as U mentioned in the proviso to Deotion 266 of the 
Civil Procedure Code. Attachment shall be effected by actual 
seizure, and the property so attached shall be kept in safe custody ia 
or near the village chavdi. Provided that no more property shall 
be attached uoder this rale than shall seem to the Village Munsif 
reasonably sufficient at a fair valuation to cover the amount of the 
decree remaining unsatbfied. ^ 

t The Yillage-Munsif may also, if he thioks fit,* but svihject to the 
provisimis of clause (h) of the proviso to section 266 of the Code of 
Civil Procedure,"^ cau<5e the decree to be executed by attachment* of 
the whole or part* of the salary of the judgment^ebtor if he be in the 
receipt of a salary. In such case the attachment shall be made by 
a written order addressed to the officer or person who disbnrses the 
salary, requiring hioi to withhold every month such portion as the 
Yillage-Munsif may direct and to pay the same to the judgment- 
creditor. Such order may be issaed by the Village- Munsif, wh»-ther 
the officer or person who di-barses the salary is resident and the 
salary is payable within his loc-il jurisdiction or not- 

* 2LA. Any decree passed by a VUlage-Munsif may, on the 
application of the decree-holder, t)e forwarded to the District Judge 
or Special Judge, as the case may be, who may transmit it for 
exejution to tha 0>urt of any Village- Muanf or any other Civil 
Court having jarisdiution in any place where the jadgment-debtor is 
represented to have moveable property ; and such Court shall, subject 
to the provisions of rule 21, proceed as if the decree was passoj by 
itself/ 

22. All claims to attached property shall be inquired into 
without delay and summarily determined by the Village-Munsif 
after hearing such evidence as may be tendered by the claimant and 
the decree-holder respectively, and after exaoaining, if necessary, the 
judgment-debtor. 

t i'his para was added by Notiti cation No. 5585 of 1880^, B. Q. G. for 
1880, pt. 1, pp. 708, 709. -. * 

♦-^* The words in the Italics in para 2 of rule 21 and rule 21A have 
been iuserted py NotiticaUon No. 3634 of 1903 ; B. G, G. for 1903, pt, I 
p.8Wt/ . 

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Id Procedure 1>efbre \^Ikg:e*iMfiiisifi. 

28. If the attached property is '6abjf>ot to apee/ly and /nMnral 
decay or when the expease of kee|nng it in on^^oly sh *n exceed its 
valne» it may be sold at'oaoe by order of the YillAge-Muosif. 

24. la all other oases, if the judgment debtor does not tender 
the amonnt of the decree witbin three days fro'u the date of attaoh- 
menf, the Yillage-MuDsif shall issue a notice of the sale. of the 
property, to be posted up in a conspicuous place in the chavdi vrhere 
the property is kept, specifying the property to be sold, the amount 
for which the sale is ordered, and the day and hour of sale. 

25. Except in the case mentioned in rule 22 no sale shall 
take plaae till after the expiration of at least ten days from the date 
on which the notice has been posted up on the chavdi. 

26. If the Yillage-Munsif is himself an Officiating Patel and 
if the property is within the limits of his jurisdiction as such, he 
shall himself order BSkd superintend the attachtnent and the condoct 
of the sale. In aAy other case, the Village^Munsif shall direct his 
orders for the attachment and sale to an Officiating Patel in whose 
jurisdiction as such, the property is, and it diall be the duty of sudi 
Patel to carry out the execution under the orders of the Village- 
Munsif. 

t In towns which are the head quarter of a Civil Court, the 
Village-Munsif may, when so authorized by the District or Special 
Judge, direct his orders to the Nazir of such Court, whose duty it 
will be to execute such orders accordingly. 

27. The officer conducting the sale may in his discretion, for 
sufficient reason, adjourn the sale, reporting the fact to the Village- 
Munsif, who may pass such orders as may seem just as to the 
renewal of the sale. 

28. The proceeds of the sale shall be made over by ihe Yillage. 
Munsif to the decree-holier to the extent necessary to satisfy hid 
decree, any surplus being handed over to the juilgment-debtor. 
Receipts shall be taken for any payment made under his rdle : and 
the necessary entry as to S4tisfd\.Maon shall be matie in the ftegister. 

29. The Village-Munsif shill be entitled to employ the ag^wqr 
of the inferior Village- servants for carrying out his orders in any 

suit or execution-matter ponding before him under the Act i aiid it 

y ,,. -~ '■ — *-''^' - *-■'■ ■ 

t This para was added by notiacation JSo, 5585 of I^SOooqIc 



Rtttot Hmt the guidance of Conciliators. n 

shall be the du^y of the Hetremie aad PdUoo Fatela and Knlkarms 
ibreqghooi tb^ looal area of hia jurladioUou to render him all the 
asatstaoaeiQ tb^r power ia conueotioa with the disobai^e of bis 
dotie« nuder the Act* 

80. No coata shall be awarded by any VUIage-Mnnsii 
SU The Village-Mnnsif shall be entitled to bold hia Court in 
Aa village chavdi. 

Rules for the guidance of Conciliatonu 

Ttie form of the Kabuliyat under s« 43*1 

Register No....... 190 . • 

Before the Conciliator of 



^Applioant. 

Opponent. 



Claim for Bs. awarded olaitu Bs. 

On 190 , the applioant made on application 

that>— 

{Here enter-^^l) The contents of the application^ (2) attendance 
of the parties^ (3) the contentioju of the parties and the amicable 
settlement to which tite parties have arrived). 

When the time allowed in the Kabuliyat for the payioent of 
any sum or any instalment, or for the delivery of possession of any 
property expires before the filing of the Kabuliyat in Court, such time 
shall be deemed to e^i^iened to three months from the date of the filing 
of the Kabuliyat. 

Date 190 . 

We agree to this Kabuliyat which has been read aloud in our 
presence and to which we put our signatures with full knowledge 
of our ri<:hts. 

{Signature or marks (as the case may h) of the parties. 

This Kabuliyat has been agreed to by the parties; and is signed 
by them in my presence* 
Date 190 . Conciliator. 

i Till! form is not iiotitled in th** Gazorte ; but we ha^^ taken it from the 
rulet made by the ii^peoial Judge for the gaidanoe of Oonciliators, 



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12 , Rules for the guidance of Conciliator^. 

Procedure. 
Demand of certificate — When the right tci claim a certificate 
^ader spctioQ 46 accrue?, the prescribed fee shall be paid and the 
certificate demanded within ten days from the accrnal of such right, 
otherwise the conciliator shall dismiss the application.^ 
1- ::Service of notice — The delivery of the written notice referred 
to in section 44 of the Act shall be effected through the Subordinate 
Judge, to whom it should be sent for service by the Conciliator at 
the same time that he forwards the agreement. The Subordinate 
Judge immediately on receipt of the agreement and of the written 
notice, shall cause the latter to be duly served on the party named 
therein, and the date of such service shall be endorsed by the 
Subordinate Jadge upon the agreement.^ 

Charges. 

Charges ^o be made by Conciliators and the rules as to the 
record and accounts to be kept by them.^ 

A— Table of charges. 

(1) For forwarding anf Qnehalf per cent, of the 
agreement under section 44 to< amount or value of the subject* 
the Uourt. (. matter of the agreement. 

Oce-half per cent of the 
amount or vulue of the subject* 
matter of the tgreement ; provided 



(2) For Ditto. Ditto, 
under section 45. 



that the charge shall be in no case 
less than four annas or more than 
LRs. 5. 



(8) For granting a 1 ^ ^^ 
certificate under section 46. j 

The above charges shall not be payable in cash but in Court 
fee-labels, which shall be affixed to the documents in respect of which 
the charges are respectively payable. 

If the percentage calculated according to item No. 1 or 2 of the 
foregoing table amounfs to a sum which cannot be exactly refiresent- 
ed by Court-fee-labels of procurable values, the charge sljall 
be enhanced to the nearest amount wldch c^n be so represented. 

(1) S^e noiiHcatioii No. 8125, B. G. W. for 1880, pf, I, p. 1072. 
(2, See iiotittcrttion No- 5370, B. Q. G. for 1883, pt. I, p 68e. 
(3) 8«e QOtilication Ko. 7536, B. G. G. for 1879, pt. I, p. 999. 



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Rules for the guidance of Conciliators. 



13 



A charge at the following rate^iliall be levied by Conoiliators 
from every applicant in conseqnence of whose application a, smniDons 
is issued under section 40 (namely) : — 

if only one person be summoned two a^nas ; 

' I two annas for the first 

if two or more per«oos be Bummoned. J ^^-JX Xr 

( persons. 

The said charge shall be levied by means of Court-fee labels 
which shall be attached to the applications in respect of which the 
charges are respectively made and shall be cancelled by the 
Conciliators previous to the issue of summonses^ 

Records and Accounts 

£— Every Conciliator appointed under this Act shall keep 
a General Register in the following form ; — 



1 


3 


3 


4 


5 


« 


, 


8 


9 


10 


11 


13 


la 


.1 

1 


d 

1 

• 


§ 

i 

•n . 

P 

1 

3 

<s 

I 


Nttme, caste, residence and occupation of 

the person against whom the applicution 

is made. 


1 
§ 

§ 


1 

OB 

2 
1 

1 

"5. 
•§ 

cs 

p 


1 

1 

O 

1 


§ 
1 

o 

I 

o 
;i3 


1 
II 

Is 

« o 

:§» 
bO-3 

il 

II 

o 


1 

O 

o 

1 


5 

.2 

W 

fens 

11 

8 

O 

A 


-a 

00 

S 

P3 


1 

§ 

o 
•8 



























I See tiorificatiun No. 7095 ; B. Oi. G. i'or 1884, part I, p. 784. 

y Google 



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14 Rules for the guklMce of CondUators« 

BxplftiiatlMS. 

(1) When an application i$ made to a Coaoiliator ha shoaM 
immediately fill in the first five oolnmns, giving each application a 
serial number in the order of its presentation ; the concise statement 
jof the case required to be taken down in writing by section 40 of 
the Act ihonid be written in the fifth colomn. 

(2) If all the parties to a dispnte apply jointly at the same 
time to a conciliator, their names should be entered in oolnmn 3 as 
joint applicants^ and colanms 4, 6 and 7 need not be filled up. 

(3) In the 6th column the adjourned date or dates, if any, 
should also be shown below the date first fixed, and an entry should 
be made in the same column showing the mode adopted for securing 
the presence of the opposite party, whether by summons, message, 
or personal oral communication, (as the case may be). 

(4) K the opposite party fails to appear on the date first fixed 
or within the time, if any, subsequently extended, this fact should be 
noted in column 7. 

(5) In column 8 if an agreement finally disposing of the matter 
is arrived at, an abstract of siKsb agreement should be given, or if a 
reference to arbitration is agreed to, the name of the arbitrator 
should be entered, or if tbe endeavour to bring about an amicable 
settlement fails, the fact should be recorded. 

(6) The date of the certificate, if any, granted under section 46 
should be particularly noted in column 11. 

(7) If cross-applicadons in the same matter are made at 
difterent times, the fact should be noted by a cross-reference in the 
column of remarks. Any fact connected with the application or 
dispute which the Conciliator thinks it worth while or important to 
record may be noted in this column. 

(8) The Conciliator should attach his signature in the last 
column, when the application is finally disposed of by him. 

(7— Every Conciliator shall also keep an account of all fees 
received by him in the following form. 



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kules iai tbeiiruiiiaiice of Conciliators. 



15 



1 


2 


3 


4 


5 


6 


7 




1 


1 




Fee for what purpose paid. 






1 


• 

1 


S 

14 


1 


1 • 




s 

II 

1 

s 


s 

1 

1 

o 

1 

1 


1 
1 

1 


fJ 
II 

c O 


a 

o § 
1 


11 

1 

1. 






Monthly 


Total... 






1 



Begister^ ofagreementi under sections 44 and 45 cf Act XVII 
of 1879 and of applications for execution cf such agreements in the 
Court of the Subordinate Judge of for the year 



5 

a 

a 



§ 

o 



£ 






I" ill 



^4 



S f^ 
fZ5 



a 

a* 

■ScS 



a 



I 



i 



.o 

d 

I • 
1.1 

o-'g 



10 



11 



12 



13 



14 



t (See B. G. G. dated the 10th mrch 190S, pt. J, p. 389 ; H. 0. Circular 
orders form No. LXXIX, 

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16 Villagie^Reigstration Ruleir. 

Village registration rules. 

Bules made by the Inspector-General of Registration, 
empowered by and with t^ e previcas sanction of the Governor of 
Bombay in Council, niider the provions of section 61 of the Deccan 
Agrionlturist's Kelief Act, 1879 to 1895, for regnlatiug the 
proceedings of Village-Registrars and for providing for the custody 
of their records; in supersession of all previous rules on the saiuo 
subject, 

I.— Preliminary. 

D^jtinitions. 1. In these rules : 

(a) <^ Registrar " means the Registrar of a District appointed 
under the Indian Registratioa Act, 1877 ; 

(b) "Taluka or Petha Vaiage Registrar" means a Village- 
Registrar having concurrent jurisdiction over the whole taluka or 
petha of which he is Taluka or Petha Village Registrar and who is 
also a Sub-Registrar under the Indian Registration Act, 1877* 

(c) "Special Village Registrar" means a Village Registrar 
of a circle consisting of one or more villages. 

N. B. — Taluka and Petha Village Registrars may be also 
Special Village Registrars of circle. 

(d) ** The Act " means the Deccan Agriculturists' Relief Act 
1879, as amended by subsequent enactments. 

(a). - Register Book. 
2. Th6 Register prescribed by section 58 of the Deccan 
Fomi of' Register Agriculturists' Relief Act, 1879, shall bo a 
Book. ; book kept in tbo form of AppoAdix A. 

8, A Village Registrar before bringing a new Register Book 
into use shall count the pages, and satisfy 
r4"wb£^^^^^ himself that the number thereof corresponds 

with that given in the certificate on the title 
page.' If the number be found correct, he shall certify to that effect 
on .the title pagia. U there be a didcrepaijicy, he shall :feturn the 
book for correction to the officer from whom }t was received. 

, , I ^-' ' I — ; — 

See ^'o^if.icaao^ No. 7180, B. li. G. for 1896, pe, I, p. 967, ms amended 
by subsequent notifications as denoted hereafter. 

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Village«registratiOii Rules. 17 

4. The volumes of Register Books in each office shall be 
Numberinff of the '^^^^be'^^d '^^ 8- consecutive Series, which shall 

consecutive volumes not terminate with the vear bnt be carried on 
of Register Books. perpetually. It shalf not be necessary to 
commence a fresh volume at the commencement of a new year. 
When the amount of copying is great, two volumes of a Register 
Book may be employed simultaneously, instruments bearing an even 
serial number being copied into one and those bearing an odd serial 
number into the other. 

(b)— Index of Register, 

5. An index of all entries in the Registers shall be prepared 
in the form of Appendix B. The Index shall be prepared alphabe- 
tically in each Taluka Village Registry Office, Petha Village 
Registry Office and Village Registry Office, and shall in the last 
mentioned case be forwarded on or before the 5th of each calendar 
month by the Village Registrar to his Taluka or Petha Village 
Registrar. 

6. It shall be the duty of the Taluka or Petha Village 

Registrar to arrange the Index of each of the 
biifuiDg'^Kdex. """^ Village Registry Offices of his taluka or petha- 

circle, includinof that of his own immediate 
circle, in due order for binding, taking especial care that no Index- 
sheets of one Village Registry Office are mixed up with those of 
another, and seeing that all sheets bearing one and the same letter 
are, for each Village Registry Office, brought together for the year 
according to the order of their preparation bef re being bound. A 
blank page should be inserted in each Index file, before being 
bound, at each place where the Index for one Village Registry 
Office terminates and that of another commences. At the end of the 
year the Index for the taluka or petha shall be bound into Volumes, 

7. A synoptical table, as per form given in Appendix 0. 
should be inserted at the commencement of each volume of the 
Talnkfk or Petha Index, the pages in each volume being numbered 
and the name of the Village Registry Office to whieh the succeeding 
sheets belong «hall be written in bold characters on the blank page. 

8. The nanie of the village to be entered in the first column 
of the Index shall be in the case— 

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18 Viliage-registf ation Rules. 

(a) of an instrament purporting to affeot immoveable 

property, that of the village in which that property is 
situate ; 

(b) of any other* instrument, that of the village in which the 

party or parties executing it resides or reside. 

9. In case of a document executed by a guardian on behalf of 
a minor the name of the minor shall be entered first in column 4 
and below it in brackets should be shown the name of the guardian. 
In the case of a claiming party appearing before a Village Registrar 
by an agent, the name of the principal shall be entered in colamn 6 
and below it shall be shown in brackets the name of the agent. 

10. When the property is situated or when the executants 
reside in different villages, a separate entry shall be made under the 
name of each village in its proper alphabetical place in this form, 
e, g. *' Arle and three others." 

11. Index sheets will be supplied to Taluka Village RegistrarSi 
Petha Village Registrars, and Village Registrars in loose sheets 
bearing all letters of the alphabet printed on their lower margins. 
In employing one of such sheets for the purpose of indexing under 
any particular letter, all the letters below the required Index letter 
should be removed by cutting them out and all those appearing 
above such required letter shall be cancelled by drawing an ink line 
through them. 

12« The date to be entered as the date of registration in the 
last column of the Index is the date of registration endorsed on the 
original instrument as required by the third paragraph of section 58 

of the Act. 

(c).— Claim-Note and Day-Books. 

lo. A Claim-Note Book in the form of Appendix 1), and a 
. Forma and uses of Day Book in that of Appendix E shall be 
SlToki'^''*' ^""^ ^^"^ k^P* ^y ^^^^ ^"^*«^ Registrar. 

(a) If the registration of an instrument is completed on the 
day for the attestation of the instrument and before the 
claiming party uuder such instrument leaves the office, 

♦The word < other' was Bubstitu ted for « another » by notification No. 
9381, dat<^(1 2^h November, 1898, B. G. G. for 1898, pt. I, p. 1178. 

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VjUage-registration. Rules. 19 

no olaim-note from this book need be granted to sacb 
party. 

It sball be the duty of the Village Registrar, if possible, to 
oomplete the registration of an instrument on the same day on whiob 
such instrument is prepared and attested by him. 

(b) If, however, when a party claiming under an instrument 
leaves the oflSce, the registration of such instrument is 
not complete, the Village Registrar shall grant to such 
party a claim note with the amount of fee endorsed 
therecn, which shall afterwards be taken back and filed 
when the instrument to which it relates is delivered to 
the party who claims il, or to such other person, if any 
as he has nominated in writing in that behalf *on the 
reverse of* the claim-note, and the signature of such party 
shall be taken in the Day-Book acknowledging receipt 
of such instrument. 

(d).— Cash Book. 

14. Every Taluka and Petha Village Registrar and Village 

Registrar shall keep a cash book in the form 
Cash Book. given in Appendix F, and in this book shall 

bo entered all fees paid for registration or for searches or copies 
granted. All moneys recovered from Village Registrars in the 
shape of fines, percentage-allowance on fees refunded to parties, &c, 
shall also be brought to account, and the correctness of each day's 
total attested by the Village Registrar's signature in this book. 

(e)— General Provisions. 

15. The office of every Taluka or Fetha Village-Registrar 

shall be the local office of issue for books. 
Local offices of issue f ^ ^^ the other Village-Registrars 

for Books and forms. « , m , x^ i . i. i ^ ^ 

of the Taluka or Fetha m which such office 

is situate. 

16. The office of each Taluka or Fetha Village Registrar shall 

be a central office of record for the Village 

Transfer of records Registry Offices of th*^ Taluka or Petha, and 

M^ViiUgfRegis' the K6gi3ter, Day and Cash Books of the 

trar. latter Village Begistry Offices shall be 

forwarded to the said Taluka or Fetha Village 

* These words were added by notification No. 9381, cited on Pv^\^,^i^ 

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20 Village-registration R^iles. 

Begistrar for die purpose of being recorded as they, from time to 
time, become complete, and have, when complete, undergone scratiny 
at the bands either of District Registrar or District Inspector. 
Subject to the sanction of the District Registrar ,t a Gash or Day Book 
may be destroyed after a lapse of six years from the date of the final 
entr^ appearing therein. 

17. Each Village Registrar, not being a Taluka or Petha 

Village Registrar, shall hold office in the chavdi 

Village Kegistrare of the village, which is the headquarters of 

where to hold their ^, . , ® , ,, .„ u j- • l 

ofllce* &o, the circle, or where the village chavdi is not 

available, in a hired building, office-honrs 
being from 11 A. M. to 5 V. M. On closing the office, the Registration 
books, &c., shall be secured in a box or otherwise, and if the office be 
held in the chavdi, given in charge of the Viilage Police for safe 
custody. 

* 17A. In cases of grave emergency, it shall be permissible 
for a Village-Registrar including a Taluka or Petha Village 
Registrar to draw up and register deeds at his office or his private 
residence, or the private residence of some person other than himself, 
OQ any day whether a Sunday or Qovernment Holiday or not, and 
at any hour of the day. In all such cases the V^illage Registrar 
shall at once report to the Registrar to whom he is subordinate, the 
fact of his having drawn up and registered a deed as above and the 
reasons for his action. 

18, All Taluka or Petha Village Registrars and Village 

Registrars shall provide, out of the amount 

TT.?^*^"^* *°^ Petha received by them as remuneration, whatever 
Village RHjrietrars x • i xu i ^ .i, 

and Village Registrars writing materials they may require for the 
%o provi .6 their own ^^^^ ^^f ^tj^j^ respective offices, excepting such 
wntinor materials and ,, ^^ iii. i-ii. 

to he responf^ihiH for blank forms and books as are supplied by 
qualiiy of writing and Government. They shall be responsible that 
records. a'l instruments drawn up by them or under 

their superintendence are written intelligibly^ 
legibly and distinctly, and that their records are kepi neately and in 
order. 

t The words * District Registrar ' have heen suhstitnted for the words 
« Inspector (ieneral of Registration,*' by notification No. 768 A dated 4th Feb. 
1903, B. G. G. for 1902 pt. I. p. 214. 

• This rule is added by notification No. 7683, dated 4th NoTember, 1903, 
B, G. a lor 1903, pt. 1, p. 139!?. 

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Village-registration Rules. 21 

19. No Village Registrar shall destroy my of the old papers 

of hb offioe without having first obtained the 
pa^n?"^^'"'* ^^ ^^^ sanction of the Begistrai- through the Taluka 
or Petha Village Registrar. 

The following papers, &c., in the Talnlca or Petha Village 
Registry o£Sces and Village Registry offices shall be destroyed after 
the lapse of two whole years from the date on which such papers, 
&o., or the proceedings to which they relate were finally disposed of, 
subject to the sanction of the Registrar of the Distriot. A list shall 
be kept of the papers so destroyed in the form given in Appendix G. 

(1) Receipts (claim-notes) granted nnder rale 13 and taken 
back, and counterparts of such receipts. (2) Contingent Bills. 
(3) Indents for Dead Stock. (4) Indents for Books and Forms. 
(5) Applications for searches and inspections and applications for 
copies. (6) Applications for attendance at private residence. 
(7) Applicationsfor leave and reports of delivering over and receiving 
charge of office. (8) Ordinary correspondence, excepting circular 
orders, standing orders and other papers which may be considered by 
the District Registrar to be of importance. 

Every Village Registrar shall submit yearly, in the month of 
January, a list of those papers of his office, not less than two years 
old on the preceding 3ist of December, which he proposes to 
destroy, to the Registrar of the District through the Taluka or Petha 
Village Registrar. 

* Any papers other than the foregoing may also be destroyed 
with the previous sanction of the District Registrar."^ 

III.— Procedure. 

(f) —Execution and registration of Instruments under 
sections 57 and 58. 

20. Village Registrars shall duly satisfy themselves of the 

identity of each executant, and shall receive 

Preliminary mea- the fee for registration before the instrument 

before an iustnjm»»nt i*< written. They shall also satisfy themselves 

U written. that no agriculturist purporting to be an 

executant is a lunatic, an idiot or a minors 

*^* This matter hat been substituted, by uoiification Ko. 768 A, dated 
4th February 1892 • B. G, (J. for 1902, pt, 1, p. 2U. 



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2> Village-registration Jlules. 

and shall pay careful attention to the requirements of the Stamp Ao* 
and the rules issued under it. 

21. E very Vil Jage Begisti ar shall te provided under the order, 

of the Registrar with specimen forms of all 
stnmenti.*'''" ^^ '"" ' instruirente to which agriculturists are 

ordinarily parties. In drafting an instrument, 
oaro must be taken to follow the best obtainable form, and while 
fully expressing the intention:^ of the parties, to avoid repetition and 
prolixity. 

Above all, the language employed shall be simple and clear, and 
the description of immoveable projierty, if any has to be mentioned in 
the instrument, shall be such as to enable the property to be 
unmistakeably identified. When the instrument relates to land to 
which a survey has been extended, the survey numbers shall be set 
forth. 

The Village Registrar shall ordinarily draw up the instrument 
himself, and shall only employ another person to do so under his 
superintendence when he is himself prevented by an exceptional 
press of work or other unavoidable cause from drawing up the 
instrument himself. When the instrument is not drawn up by the 
Villi' ge Registrar himself, but under his superintendence, the person 
drawing up the instrument shall be chosen by the Village Regbtrar, 
and is in no case to be remunerated by the parties themselves but by 
the Village Registrar from his percentage-fees. 

22. When the instrument has been written, it shall be read out 
EndoisementB to be to all the parties by the Village Registrar 

made on the inetru- ^qJ executed as provided in section 57 of the 
meat alter ita exe- *^ 

cntion. Act. 

The Village Registrar shall then endorse upon the instrument 
a note in the following from : — 

R«. A. P. 
" Fee received for preparation and registration &c, &o.... " 

Total... 0'' 



Immediately below this note shall appear the endorsement of 
attestation required by paragraph 2 of section 57 of the Act in the 
following form :— 



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Viilage-registration Rules. 23 

'^ This instrument written by me (or under my superintendence), 
afler having been read aloud within hh hearing, has been 
executed in my presence, this day, by A.B. of CJJ,y whom 
1 know (or of whose identity 1 have duly satisfied myself.)" 

If a witness is examined as to identity, his signature and place 
of residence shall be taken in the following form, viz : 

«' I, E.F. of G.H., identify A.B. (signature or mark of E.F.) " 

The endorsement shall be signed and dated by the Village 
Kegistrar ; and if any of the parties to the instrument is unable to 
read it, the attestation of two respectable witnesses shall immediately 
follow that of the Village Registrar in the following form : 

"Wel.X of K.L. and M.N. of O.P., have witnessed the 
execution, this day, of this instrument by A.Jj. of C.i)." 

(Signature or mark of I.J. of K.L.) 
(Signature or mark of M.N. of O.P.) 
The Village Registrar shall next endorse upon the instrument 
the note required by paragraph 2 of section 59 of the Act as to 
whether or not the transfer of the consideration named therein or of 
any part thereof took place in his presence This note shall be in 
one or other of the following forms as the case may be : 

'* A.B. of CD. has in my presence, this day, received from Q.R. 
of S.r. the sum of Rs. (to be entered both in figures and 
words) the contract of this matter is not clear. Is it so stated 
in the notification (the following articles, viz.) being the whole 
(or part) of the consideration stated in this instrument ; " or 
" No portion of the consideration stated in this instrument has 

been paid in my presence to AJL of C.Z>." 
The endorsement shall be gip^ned by the Village Registrar* 
Immediately below duch declaration shall be endorsed a further 
note showing the number of the instrument and the page and 
volume of the Register Book in which it is registered. 

Finally, at the foot of all these endorsements shall be affixed 
the Village Registrar's signature with his official designation "Village 
Registrar of," and the date of buoh signature. 

23. It shall be the duty of the Village Registrar to enquire 
w;hether the instrument about to be executed will modify or wholly 



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24 Village*regi8tratton Rules. 

or partly snperseda any previong instrnment ; and if ihe parties 
answer in ihe negative, the following declaration shall be endorsed 
on the instrument and signed by the olaimiog party or parties or by 
his or their authorized agent. 

« I (or We) hereby declare that this instrnment does not modify 
or wholly or partly supersede any ptevioos transaction or 
instrument." 

24. When a previous instrument, which is to be modified or 

wholly or partly superseded by a new instru- 

MarkiDg of previ- ment, is produced in accordance with the 
ons instruments for , , . , - . ^.^ - i * i 

indentificatton. third paragraph of section 59 of the Act, the 

Village Begistrar shall write upon such 

previous instrnment the following note : 

" This instrument has been modified (or * wholly or partly 

superseded) by instmnoent No. of 189 executed in 

my presence by A.B. of CD. in favour of Q,R* of S.T. and 

attested by me this day.'* 

On the new instrument which modifies or supersedes the 

previous instrument, the Village Begistrar shall write at the top cf 

the document immediately over the stamp-impression, if there be 

any, the following note : 

" The instrument dated executed by A.B^ in favour of 

QM., which this instrument modifies (supersedes) has been 

produced before me this day, and a note of such modification 

(supersession) has been endorsed by me thereon." 

Provided that the writing of this note shall not dispense with the 

necessity of a full description of the old instrument being contained 

in the new one as required by section 59 of the Act. 

t When it is*, alleged that any such previous instrument is on tho 
record or otherwise in the custody of a Court 
'^^*^°* or is lost, or has been destroyed, the Village 

Uegistrar, after ascertaining that such previous instrument was duly 
registered, may permit a certified copy thereof to be produced in 
lieu of the original ; and in every sucli case the following procedure 
shall be observed : 

* The word < or » was inserted by notificaiiou No. 9381, dated 24th Nov. 
1833. B. G. G, for 1898, pt. I, p. 1178. 

t This proviso was added in substitution of a note to rule 24 by the 
notilicalion No. 24 dated 6th Jan, 1903 j B, G. G, for 1903, pt. I, p. %0, 

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. village-registration Rules. 25 

A. The contents of the certified copy shall be folly 
described in the modifying or snperseding instrument 
and the said copy shall be marked by the Village 
Registrar under his hand for identification with the 
words " the instrument of which this is a certified copy 
has been modified (or wholly or partly superseded) by 
instrument No, of executed in favour of 

Q. R. of S. T. and attested by me this day," and shall 
then be dated and delivered to the person who produced 
it. 

J5. If the previous instrument is lost, or has been destroyed 
and the registered entry thereof ii in the Village 
Registrar's custody, he shall endorse on such entry a 
note under his hand as to the modification or supersession 
of the said inscrument, to the following eflfect : 

'* The instrument of which this is a copy has been modified 
(wholly or partly superseded) by instrum^ nt serial No. dated 

and executed in my presence by A. B. of 0. D. in favour of Q. R, of 
S. T," 

C. If the previous instrument is in the custody of a Court, or 
if it is lost, or has been destroyed, and the registered 
entry thereof is in the custody of another officer, the 
Village Registrar shall forward a certified copy of the 
entry in his Register relating to the modifying or 
superseding instrument to such Court or officer, after 
writing an endorsement of the despatch of such copy 
below the registered entry in column 3 of the Register 
book, with a report explaining the circumstances. If 
the officer be a Village Registrar, he shall, on receipt 
of such a report, endorse on the registered entry a note 
under his hand as to the modification or supersession of 
the instrument in the form prescribed in clause B above. 

Note — All notes under paras 1 and 2 of rule 24 and under the 
Glauses A, B and C above shall be signed and dated by the Village 
Registrar. 

25. In ordinary cases all instruments shall be drawn up and 
registered at the office of the Village Registrar authorized to preparg 

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D 



26 Village-registration Rules. . 

the same. But on special cause beiag shown, 

Preparation ^ and ^^ ^^^^ ^^^y attend at the residence of any 

registration of instru- , - . ^ i. • i ^l 

ment at private re- person desiring to have any instrument 

sidence. prepared and shall charge an adkiitional fee as 

laid down in the Fee Table prescribed under section 63 of the Act A 
Village Registrar receiving batta under Article V of the Fee Table 
for attendance at a private residence for the preparation of an 
instrument, or for the attestation of a power-of-attomey, shall grant 
a receipt in writing for the money so received by him to tte party 
on whose application he proceeds to the private residence. 

(g),-^Provisions applicable to Registration by Village 
Registrars under section 58 of the Act 

26. If in writing an instrument it has been found necessary to 

make any corrections in the nature of erasures, 

Corrections ia the interlineations, &c., the same shall be initialled 

Sffili?'"'"''" "" by the Village-Registrar and clearly noted at 

the end of the instrument immediately above 
the signatures of the executants. 

27. If in any case the space afforded by a single piece of paper 

is found insufficient to contain all the writing 

Provisions ^^®" of an instrument and it is necessary to attach 

swgle piece of paper an extra piece or pieces thereto, the Village 

is insufficient to con- JJegistrar shall write his signature across the 
tain all the writing of .,.«., . ° . „ . 

an instrument. junction of the two or more pieces of paper of 

which the instrument consists, both on the 

front and on the reverse side, and make a note in the Register Book 

at the foot of the entry of how many pieces of paper in addition to 

the stamp paper the instrument consists. 

28. A Taluka or Petha Village Registrar who registers any 

instrument in the exercise of concurrent 

Memorandum of jurisdiction, or the Village-Registrar when 
instrument registered •' . . . , 1 1 x« 1 • , , 

by a Taluka or Petha registering a document relating to immoveable 

Village Registrar to property situate either wholly or partly in 
be sent to Village ^ ^ / , ., ,, , . 1 „ , 

Registrar of circle in Some Circle other than his own, shall, on such 

which property is registration being completed, forward to the 

executant resWel '° Village Registrar within whose circle the 

property affected by the instrument is situi^ 



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Village-regi^:cation Rules. 27 

or ia case of an instrament relating to moveable property tcT the 
Village Registrar of the circle in which the executant or executants 
of snch instrument reades or reside, or if the property be sitimted or 
ex'Hjutants reside in different circles, to the Village Registrar of each 
Audi circle^ a memorandum of the instrument so registered in the 
form of Appending H. 

When memoranda are despatched under this rule by a Taluka 
or Petha Village Registrar to Village Registrars in his Taluka or 
Petha or by a Village Registrar to another Village Registrar, a note 
shall be made in the Register-Book below the true copy certificate to 
the effect that such memorandum has been sent and specifying the 
Village Registrar to whom and the date on which such memorandum 
was sent. 

All such memoranda sent to a Village Registrar's office shall be 
filed in that office for two calendar years, at the end of which period 
they may, with the sanction of the Registrar conveyed through the 
Taluka or Petha Village Registrar, be destroyed. 

29. In copying an instrument into the Register Book, the 

endorsements prescribed by rules, 22, 23 and 

Mode of copying 34 shall be copied in (Column 2 and the 
inBtrnments into the t . ,« 1 1* 1 . i 

Register. Contents of the instrument itself shall be copied 

in column 8. When the instrument is stamped, 

the value of the stamp and stamp-vendor's endorsement appearing 

on the original instrument shall be copied in column 3 of the 

Register Book above the entry. 

30. Errors, erasures, or alterations appearing in original 

instruments or in the endorsements thereon 
Method of noting gj^^j) ^ ^^pj^ jn^o the Register exactly as 
errors, erasures, &c., . xi • r 1 j -« 
in original instru- they appear la those instruments or endorse- 
ments in the copies ju^nts, marginal notes being written explana- 
thereof in t h e \ , j u. i« 
Register. tory of such errorS, erasures, and alterations, 

^. ^., **so in the original" or corresponding 
words in the vernacular, with a ♦over the error, erasure, and 
alteration and a corresponding mark over the marginal entry 
relating thereta 

31. On the copy in the Register Book being completeid, the 
Village Registrar having carefully compared it with the original 

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28 VillageTcgistration Rules. 

*" , stall certify under bis signature, with hb 

of insenimefit m o&QieA designation attached, that it is a trne 

Register Book and oopv. Any mistakes made at the time of 

method of atres»ine ". v n i i j u i.i. j 

corrections in that copying shall be corrected by the words written 

copy. by mistake being bracketed and the corrected 

words being written above, or by the words 
omitted being neatly iaterlineated ; but the Village Registrar shall 
attest all such corrections in the Begister Book by attaching his 
initials thereto, and certify at the foot of the entry that these mistakes 
were made at the time of copying. 

When any such corrections are made, the form of certificate 
shall be as follows : 

"True Copy" 

"The words line page having been 

unnecessarily written at the time of copying, have been placed 
in brockets " or ** the words line page 

having been written by mistake at the time of copying, have 
been placed in brackets and the words have been written 
above,*' or " the words having been omitted by mistake from 
line page at the time of copying, have been 

written above the line," 

A.B. 
Village Registrar. 

32. All entries in a Register Book shall be numbered in a 
consecutive series which shall commence and 

Entries in Kegister- terminate with the calendar year, a fresh series 
Book how to be num- i i . • 

bered and marked. being commenced at the beginning of each 

year. The serial number shall appear in 

column 1, being distinguished in the case of instruments relating to 

immoveable property by the letter A and in that of instruments 

relating to moveable property by the letter B. 

An ink line shall be drawn from left to right across the page of 
the Register Book to show where one entry 

Termination of one terminates and where the next begins, such 

entry and commence- . i. . , , , , 

ment of next to be line bemg drawn immediately below that 

^owninthe Register poition of the copy, whether in column 2 or 

3, which appears lowest down on the page. 



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Village-registration Rules. 29 

The entry relating to one instrument in one colamn shall in no case 
be made alongside of the entry relating to any other instrument in 
the other column. 

Where owing to the docnment being short, the marginal entries 
in the Register Book extend lower down in column 2 than the copy 
of the document in column 3, the blank space left in the last named 
column shall be cancelled by cross lines in ink being drawn over it. 

(h).— Copies and Searches. 

33. All errors, interlineations, &c., appearing in the registered 
entry shall be shown in any copy granted under the fourth paragraph 
of section 58 of the Act, in the same manner as they appear in the 
Register as required by rule 30, and mistakes made in preparing 
the copy shall be corrected in the manner prescribed in rule 31 for 
correcting mistakes when copying instruments in the Register, In 
certifying any copy of Registered entry, a Village Registrai shall 
attach his full official designation thereto as well as his signature. 
On furnishing a copy as aforesaid the Village Registrar shall make 
a note immediately below the last endorsement appearing in 
oolamn 2 of the Register Book as follows : — "Copy of the original 
of this entry or copy of this entry granted free of charge to ... on ... 

34. Subject to the payment of the fees prescribed in this behalf 

by Government under section 63 of the Act, 
Applications ^^ for Register Books and Indexes and memoranda 
gpection. Receipt for filed under rule 28 shall be open to the 
any paynaent on ac- inspection of any person applying to inspect 
count of the above to ^ ^K /. ^ *: ^i. • Tn 

be alvv-ays given. the same, and copies oi entries therein shall 

be given to, or may be taken by, any person 
applying for such copies. Provided that no Register Book or other 
record of a Village Registrar's office shall be inspected by any i)erson 
other than a Government officer, save in the presence of the Village 
Registrar and in the place used by him as his office, and that all 
applications for inspection or for copies shall be in writing. 

Any person permitted to inspect such records may search for 
any entry therein, or if he shall so desire, such search shall be n,ade 
for him as aforesaid by the Village Registrar. 

On every application for search, or for inspection or for a copy, 
there shall be endorsed by the Village Registrar the date of receipt, 

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3lO Villasre-registraition Rules* 

Uie date oo whioh the requbition is satisfied and tbe amoimt o£ fee 
received. 

For every payment made under this rule a receipt in the form 
of Appendix 1 shall be granted by the Village Registrar. 

(i).— Returns. 

35. At the close of each month every such Village Registrar 

as aforesaid shall forward to the Taluka or 

.. ^r^^P^F^^" ^^ Petha Village Registrar a statement in the 

Monthly Return, &c. u a j- t i, • xt i. r 

form of Appendix J, showmg the number uf 

instruments registered by him and all fee collections made by him, 

during that month including those on account of searches, inspections 

&c., and copies granted under rule 34. From the Returns thus sent 

and from the information to be gathered from the books of his own 

office, the Taluka or Petha Village Registrar shall prepare a general 

Monthly Return from the whole of the Village Registry Offices of 

the Taluka or Petha in the form of Appendix J, and shall submit the 

same to the Registrar, in whose office again a general District 

Monthly Return of the same kind shall be prepared and forwarded 

to the Inspector General of Registration. 

(j). — Remittances. 

36. Remittances on account of Registration fees, &c., shall be 

Remittance to the sent as follows to the Treasury :— 
Treasury how to ba 
made. 

(a) by Taluka and Pefcha Village Registrars, to the Taluka 
or Petha Treasury along with the collections of the 
office under the Indian Registration Act, 1877 ; and 

(b) by Village Registrars by means of the Village Mahars, 
monthly to the Taluka or Petha Village Registrar, who 
shall immediately on receipt enter the same in his Cash 
Book and pay the amounts into the Treasury as ordered 
above. 

The amounts thus remitted monthly shall be sent so as to reach 
the Taluka or Petha Village Registrar not later than the 25th, or in 
the case of the Taluka or Petha Village Registry Offices, where there 
are no treasuries, not later than the 20th of each month ; or if thes e 
dates fell npoB a Sunday or gazetted public holiday, not later than 



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Village*r6gistratian ftules. 31 

the day pteoeding such Sunday or holiday. In the month of March 
remittances may be made so as to reach the Taluka or Petha 
ViUage Registrar not later than the 31st cf that month. 

A remittance by a Taluka Village Registrar shall be ac- 
companied by his Cash Book, in which, on the remittance being paid 
in, the receipt ot the Treasury Officer for the amount shall be obtained. 

In the case of a Petha Village Registrar at whose bead-quarters 
there is no Treasury, the receipt for the remittance to be obtained 
from the Treasury OflFicer at Taluka head-quarters shall be kept in a 
separate file* 

Remittances by Village Registrars shall be accompanied by a 
chuUan, which chnllan shall be countersigned by the Taluka or 
Petha Village Registrar as an acknowledgment of the receipt of the 
money, and the chullan so countersigned shall be retransmitted by 
the Taluka or Petha Village Registrar to the Village Registrar in 
whose office it shall be filed. 

(k).— Correspondence. 

37. Taluka and Petha Village Registrars shall, as regards 
Taluka and Petha official correspondence, be the medium of 
bo *he medium^ of communication between the Village Registrars 
communication bet- and the Registrars, 
ween Village Kogfa- 
trars and the regis- 
trars. 

Where there is no post office, correspondence from and to the 
Correspondence how offices of Village Registrars shall be sent by 
to be «ent. uj^^ns of the Village Mahars. 

References from Village Rogbtrars regarding matters of 

procedure, when the point involved is in the 

References from opinion of the Taluka or Petha Village' 

liow to be dispSed^ot Regbtrar of minor importance, and the Taluka 

in certain caeeB. qj Petha Village Regbtrar to whom the 

reference b addressed entertains no doubt as 

to what the answer should be, may be disposed of by such Taluka 

or Petha Village Regbtrar without further reference to the 

Regbtrar, The reply of the Taluka or Petha Village Regbtrar to a 

reference of the above nature shall, however, be in the shape of 

advice, not in that of an order, A Register of such references, 



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32 Village-registration Rules. 

showing also the uianucr in which they have been disposed of, shall 
be kept by each TaUika or Petha Village Registrar, who shall be 
responsible for the exercise of due discretion in replying thereto. 
When in doubt on any point, the Taluka or Petha Village Registrar 
shall refer the matter to the Registrar. 

(1).— Refund of Fees. 

38. If for any reason the execution and registration of an 

,. ,. , n „ instrument for which the fee has been paid are 

Kefuad of Foes. * 

abandoned, one-half of such fee shall be 

refunded to the person who paid the same. A register of such refunds 

and of refunds of fees surcharged and of safe custody fees which have 

been remitted shall be kept by each Village Registrar in the form of 

Appendix K. 

39. If an original instrument which has been executed and 
registered under the provisions of section 58 of the Act, being 
unclaimed by the party entitled to the custody of the same, has 
remained in the custody of a Village Registrar for sixty days from 
the date of its registration by such Village Registrar, such Village 
Registrar shall forward such original instrument to the Taluka or 
Petha Village Registrar for safe custody. 

When a document owing to its not having been taken away 
within sixty days from the date of the completion of its registration 
is forwarded by a Village Registrar to his Taluka or Petha Village 
Registrar, and the document is delivered by such Taluka or Petha 
Village Registrar on receipt of safe custody fee, intimation of such 
delivery stating the date of such delivery shall be given by the 
Taluka or Petha Village Registrar to the Village Registrar from 
whom the document was received, and the latter shall enter m the 
last column of his Day Book the date of delivery of the document 
by the Taluka or Petha Village Registrar. 

40. No document of which, if it remains unclaimed for a 
period exceeding two years, the destruction is authorized under sub- 
section (2) of section 61 of the Act shall be destroyed without the 
previous sanction of the Registrar of the District, nor until sixty days' 
notice of proposed destruction has been duly issued to the parties 
concerned. 

When a document is destroyed a note recording its destruction 
shall be entered in the Register Book at the foot of the copy of the 

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ViIlag:e*registratiofi Rules. 



53 



doonmeniii The note shall record the fact that the doonment has 
been destroyed under the sanction of the District Registrar. 

A list of documents destroyed shall be kept in : 

(1) Each Talnka and Pethal . xi, m , , 

VUlage Registry office, ) ^^^ *^^ ^^'^l^^ ^^ P^^ta. 

(2) Each Registrar Office | for the district.* 



Appenices of Rules under section 6i. 





Appendix h—{see Rule 2) 


Serial Namber. 


Endorsements. 


Copy of Instrument;^. 


" 







* llulc 40 has been substituted for the original by notification No 
4467A dated the 27th June 1891). B. G. G. for 1899, part I, p. 979 ; and it 
baa been amended by notification No. 768 A. dated 5th February 1902. B, G. G« 
forl902, part I, p, 8U. 

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34 



Vitlftge^r^gtatrdtlon Rules. 



Appendix B — (see rule 5). 
Form of Index under Rule S framed under Act X7II of 1879.1: 







1 


t+-i 




^tH 












p 


o 




o 


t>~v 






Name of Village in which 
property is situate. 


1 

1 


Name of office in which insti 
ment is registered. 


Name and place of residence 
executant or executants. 


Nature of instrument and 
consideration or value. 


Name and place of residence 
claiming paity. 


Occupation of claiming part; 


Date of Registration and 
reference to Register. 























N. B. — In case of instruments relating to moveables, the name 
of village in which the executant or executants reside, should be 
entered in Column I. 



Appendix C. — {see rule 7). 

Form of Synoptical Table of Contents of Volume of Taluka or Petha 

Index in Taluka or Petha Village-Registrar^ s Office. 

(Jontents of Volume of Index of the Taluka 

or Petha for the year 



No. 


Name of Village Registry 
Office, 


From page. 


To page. 


Remarks. 


1 

2 
3 

4 
5 


Satara 

Arle 

Ankle ... 

Parli 

Enmteh ... 


1 

101 
207 
351 
461 


100 
206 
350 
460 
534 





% This form of index nas been substitated by notificatioa 19 o. 1128 dated 
16th February 1903. B. G. G. for 1903, part I, p. 156, 



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Village-registration Rules. 
Appendix D.— Form of Claim-Note {Rule IS). 



35 



Daily No. 

Date of 189 . 

Nature of docnment. 

Amount of value or considera- 
tion — 

Name of claiming paj'ty — 

Received fees as follows : 

For preparation and registra- 
tion Rs. 

Extra fee for registration 1 
at private residence. j 



Extra fee under Note D 
oftheFeeTaWe. 



} 



Daily No, 

Date of 189 . 

Natare of document — 

Amount of value or considera- 
tion- 
Name of claiming party — 
Received fees as follows : 

For preparation and registra* 
tiun Rs. 

Extra fee for registration 1 
at private residence. J 

Extra fee under Note D 1 
of the Fee Table. j 



Total... Rs. 



Total... Rs. 



Village Regbtrar. 

If the within named deed be 
not taken away wilJiin sixty 
days from the date of completion 
of its registration, it will be 
forwarded to the Taluka [or 
Pethajt Village Registrar and 
be liable to extra or safe custody 
fee of one anna for every day 
for which it may remain in the 
custody of Taluka or Petha 
Village-Registrar, subject to a 
maximum fee of Rs. 3. 

t llie words in brackets have been added by notification No. 9381— 
B. G. G. for 1898, pt. I, p. 1178. „^,^^, ..Google 



Village Registrar. 

If the within named deed 
be not taken away within sixty 
days from the date of completion i|| 
of its registration, it will be 
forwarded to the Taluka [or 
Petba]t Village-Registrar and 
be liable to extra or safe custody 
fee of one anna for every day 
for which it may remain in the 
custody of Taluka or Petha 
Village-Registrar, subject to a 
maximum fee of Rs. 3. 



26 



Village-registrAtion Rules. 



to 

I 

ui 

c 

a 
a 
< 



Signatures of 
Claiming 
Parties or 
their Agents 
acknowledg- 
ing reoeipt 
of Instruments 




Date on which 
Instrument is 
despatched to 

Taluka or 
Petha Village- 
Registrar for 
safe custody. 




Date on 

which 

Instrument 

is returned 

to the party. 




Date on 
which 
Registration 
of Instru- 
ment is 
completed. 




Reference 

to 
Register. 




^ 


Ot 


ci 


i 


Description of 

Instrument and Value 

of 

Property affected 

thereby. 


■ 


Daily 
Number. 





^ 



I 



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Village-registration Rules. 



37 



Appendix ¥.—(9ee Exde 14). 

FoBM OF Cash Book, 

Wednesday, 2ht August 1S95. 



Fee for search of Begisiers for 1891 on applioation 
of A. B. dated ^ ^ ... ^ ••• 

Amount of peroenta^e repaid by undersigned Village 
Begistrar *on Rupees 2 refunded to A. B. on 
document Serial No. of ••• 

Fee for copy granted of Serial No. 565 of 1885 on 
application of A. B. dated 

Fees for attesting a special Power-of- Attorney exe- 
cuted by A. B. in &vour of O. D. this day in 
my presence ... •• » 

Total fees for preparation and Registration of docu- 
ments as shown in Day iSaok of this day's 
Gate ••• •*• ••• ••• •.» ••• 

Bemitted to the Taluka Village Registrar or Treasury 
xts* ••• ••• ••• ••• ••• ••. 



Bs. 


a. 


P- 





i 








6 


5 





2 








2 





10 


8 






11 4 5 



Date* 



Village Registrar of 
Appendix G.'^see Rule 19). 
List of 'papers destroyed. 



Number and date of 
the Paper, if any. 


Subject of the Paper. 


Date of 
Destruction. 


Remarks. 


No. 


Date. 















Village Registrar of 



♦ See notification No. 938L B. G. G. for 1898 pt. I, p. 1178. 

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40 



Villajs:e«resistrati<m Rtiletf. 



Statement of instrnments registered dnring the m<mth ending 
Preparation and registration of the instrnments 



Nature of 
instrument. 


The value or consideration not exceeding 
Rs.20. 


The value or consideration exceeding 
Bs. 20, but not exceeding Bs. 50. 


The value or consideration exceeding 
Bs. 5b but not exceeding Bs. 100. 

The value or consideration exceeding 
Bfl. 100 but not exceeding Bs. 200. 


Bs. 200 but not exceeding Rs. 300. 

The value or consideration exceeding 
Bs. 30P but not exceeding Bs. 400. 




1 


2 


3 4 


5 6 




6 


1 


• 
o 


1 


lipoid 
^ 1 ^ ^ 25 


i At 
fa '^ fi 


Deeds of sale.. • 

Mortgages with posses- 
sion ... ... 

Mortgages without 
possession ... 

Deeds of gift 

Leases for periods not 
exceeding one year,. 

Leases for periods 
exceeding one year 

Bonds ... ••• 

All other deeds ••• 












1 




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Vttl^ge4r6gistratioi^ Rules. 

b the Village^Registration Office of ^Taluka^ 

affecting immoveable property. 



41 



The value or consideration exceeding 
Rs. 400 but not exceeding Rs. 500 


The value or consideration exceeding 
Rs. 500 but not exceeding Rs. 1,000, 


The value or consideration exceediug 
R^. 1,000 and upwards. 


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1. 


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2 ^ 
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The Aggregate value of immoveable 
property. 


7 


8 


9 


10 


11 


12 


13 


14 


6 


2 


6. 


fe 


d 


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Amount. 






























































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Village-registration Rule:^. 



Statement of Instrnments registered daring the month ending 
Preparation and registration of instruments 



Nature of 
instrnmenis. 



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Mortgages without 
possession ... 

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Leases for periods not 
exoeeding one year.. 

Leases for periods 
exceeding one year 

Bonds ••. i 

All other deeds 



Total.. 



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eeding 


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[feeding 


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of moveables. 



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;44 Viliage<*regi8tration Rules. 

Statement of instruments registered daring the month ending 

Powers-of-at- 
fcorney attested 



Nature of 
instruments. 



Searehes and 
inspection by 



c 

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Mortgages with posses- 
sion. ••• ••• 

Mortgages withtut 
po^'session ••• 

Deeds of gift... 

Leases for periods not 
exceeding one year- 

Leases for period? 
exceeding one year 

Bonds. 

All other deeds* 



Total. 



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a 



32 









33 



•I 



34 



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ia the Village-Rogiatration Office of Taluka- 



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Salary of I 


EKpendUare. 








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40 


41 


42 


Amount 


Amount 


Amount 


Amount 


Amount 


Amount 


Amount 


Amount 






















• 
















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46 



Village-registration Rules. 



Statement of instruments registered during the month ending ^ 
in the Tillage-Registration OflSce of Taluka 





Expenditure. 


^ Nature of 
instruments. 


• 
£ 

s 
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Mortgages with posses- 
sion. ••• ••• 

Mortgages without 
possession ... 

Deeds of gift 

Leases for periods not 
exceeding one year.. 

Leases for periods 
exceeding one year 

Bonds. ••• ••• 

All other deeds. 


















Total... 














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Village-registration Rules. 



47 



Monthly Statement of Arrears in the Circle of on the 1st 189 



ge Registrar 
ka or Petha 
e Registrar. 




•52 


Number of Documents, 

&o., of which registration 

is completed, remaining 

unclaimed in Office. 


Details of Documents 
in hand. 


*Villa 

or Talu 

Villag 


Instruments. Copies. 














10 instruments from 
April 1882. 

5 instruments from 
May 1882. 

20 copies from May 
1882. 

20 copies from June 
1882. 



Detailed Statement shotoing Number of Transactions of each Nature 

in each Registration Circle according to Number of Column in 

Statement of Instruments registered during the month. 



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5of 1, 

2 of 3, 

3 ot5, 

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5 of 2, 
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1 of 3 

an 
8 of 5 



7 of 15 1 of 1 
2 of 162 of 4 
I of 207 of 5 



lof24 



8of J5 
2 of 24 



N. B.— To be prepared by Taluka Village-Registrar from tbe 
various retnrns received from Village-Registrars and sent with his 
general statement. 



* The heading of this column has been amended by notification No, 9381 
dated 29th November 1898. B. G. G. for 1898 pt. I, p. 1178, 



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4d 



Village-registration Rules. 



Appendix K.—(aee Rule 38). 

Register <^ Refrtnda. 

Register of Befonds on acoonnt of Surcharge of Fees, Safe Cnstodj 
Fee remitted, and Fees on Deeds remaining inoomplete. 



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£ 60 






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Appendix L — (see Rule 40) > 
List of Documents destroyed. 



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Village-registration Rules* 49 

Appointments^ Salary, &c, of District-Inspectors and 
Village-Registrars.* 

41. Every Inspector shall be appointed by and may be 

suspended or dismissed by ihe Inspector- 

pe^oT^nTd^'m^BS Cte»«™' of Itegistratiou and Stamps ; but shall 
of District Inspectors, not be dismissed ^^ithont the sanction of 
Government being first obtained. 

42. Every Village Registrar not being a Sub-Registrar shall 

be appointed by, and may be suspended, and, 
Appointments, sus- ^j^^ ^^ concurrence of the Inspector-General, 
peuhion and dismissal , i. . i , i r^ . 

of Village Registrars, may be dismissed by the Registrar. 

Every Sub-Registrar appointed under the Indian Registration 
Act, 1877, in the districts to which the Deccan Agriculturists' Relief 
Act extends, shall be ex-affkio Taluka or Petha Village Registrar fCr 
the Taluka or Petha of which he is Sub-Registrar. 

43. In addition to any fixed salary all Taluka and Petha 

Village Registrars and Village Registrars shall 

Percentage com- ^^^^ 20 per cent, on the fee collections of their 
mission to lamka and . «> 1 . , 1. . 

Petha Village Regis- respective oflBces, and in addition to the above, 

trars and ViUage Taluka and Petha Village Registrars shall 

Rfgistrars. _ ^ . .. ° n .. ,. 

draw 5 per cent, on the gross collections of 

their respective Talukas or Pethas. 

44. In cases of neglect of duty, carelessness, or other official 

misconduct in contravention of the Deccan 

!> ??"*%* n^^'p''*?'^ Agriculturists' Relief Acts, 1879 to 1895, the 
Petha Village Regis- ^ . m 1 1 -A .1 

trars and Village Registrar may nne any Taluka or retha 

Registrars for neglect yyiage Registrar or Village Registrar a sum 

' ' not exceeding half a month's salary drawn 

under the said Acts, and shall report the case to the Inspector- 
General. 

45. No security for the due performance of their duties shall 

be required from Taluka and Petha Village 
Village Registrars Registrars who are required to furnish security 

to ffive securitv o * ^ 

as Sub-Registrars ; but every Village Registrar 
shall be required to give security to the extent of Rs. 100. The 
security bond of a Village Registrar shall be in the form in use in 

* iJotification No. 7189A B. G. G. for 1896, part I, p. 971 5 and iNo, 
9381 ; B, G. G. for 1896, pt, I, p. 1178, 

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5^ ViUi^-regiatrattoti Rn^ts, 

the Bevenn^ Depuriment, Tfas sectnritied moty be oae oi^ twor in 
nnmber as the Collector in ivboee charge ike bond should be kept 
directs. 

46, Incase o£ a Village Registrar being unable to attend to 

his duties awing to sinklen illness or ofter 
Agreemonta to be ^^g^j^ ]^ gjj^j ^^^^^ ^ immediate report to 
made dunne absence ., ^ , , ^ , -^.„ --. - . n ,^ 

of Bpeoial ViUa^ the Taluka or Petha Tillage Registrar of the 

^giatraw from their Sub-District, who shall forthwith repwrt the 
absence of the Village Registrar to the 
Registrar. If a locum tenens be appointed, his salary shall be 
regulated by the existing rules. Fending arrangements being m&de 
by the Registrar the office of such Village Registrar shaU be 
Qonddered as closed and applicants shall be directed to the Taluka 
or Pethat Village-Registrar. 

47. The fees to be levied by Registering officers shall be as 
follows, namely, — 

For writing or superintending the writing and for attesting and 
registering auy instrument. 

(a) If, the anmint or value of the consideration therefor or of 
the property to which such instrument relates is expressed 
therein : 















Rs. a. p. 


(1) 


When the amount or value does not exceed Re. 50... 


4 


(8) 


Do. 


do. 


exceeds Rs. 


50 but 










does not exceed Ks. 


. 100 


8 


(3) 


Do. 


do. 


100 


9) 


200 


10 


(4) 


Do. 


do. 


200 


V 


300 


1 8 


(5) 


Do. 


do. 


300 


5> 


400 


2 


(6) 


Do. 


do. 


400 


>J 


600 


3 


(7) 


Do. 


do. 


600 


55 


1,000 


4 


(B) 


Do. 


do. 


1,000 


55 


1,500 


5 


(9) 


Do. 


do. 


1,500 


55 


2,C00 


6 


(10) 


Do. 


do. 


2,000 


55 


3,000 


8 


(11) 


Po. 


do. 


3,000 


5> 


4,000 


10 


(12) 


Do. 


do. 


4,000 


55 


5,000 


12 


(13) 


Do. 


do. 


5,000 


55 


7,500 


14 


(1*) 


Do. 


do. 


7,500 


»5 


10,000 


16 


(15) 


.Do. 


do. 


10,000 


55 


15,000 


18 


(16) 


Do. 


do. 


15,000 


55 


20,000 


20 


(17) 


For every 


Rs. 500 or 


part thereof 


in 


excess 


If 8 






of Rs. 


20,000 







-} See notification No. 0381, B. G, G. for 1806, part I, page 1178» 

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Vtttag ofeg i s t f a tton Rules. 51 

* Note I :— Whore property snbjeot to a mortgage is sold to the 
mortgagee, the (HfFerenoe between the purchase-money and the 
amomit of the mortgage in respeot of which registration fee has 
already been paid shall be considered as the amount of consideration 
for the deed of sale, provided the mortgage-deed is proved to the 
satisfaction of the registering officer to have been duly registered. 
When there is no difference between the purchase money and the 
amount of mortgage, the registration fee leviable shall be annas 4. 

t Note II :— The registration fee leviable upon a document 
purporting to give collateral or auxiliary or additional or substituted 
security, or security by way of further assurance, where the principal 
or primary mortgage is proved to the satisfaction of the registering 
officer to have been duly registered, shall be the same as for the 
principal or primary mortgage, if the same does not exceed Ee. 1 : 
otherwise it shall be Re. 1 

(b) If the amount or value is not expressed : 

(18) A fixed fee of 2 

(c) If the instrument is a Will : 

(19) A fixed fee of 2 

(d) if the instrument is one which eannot be brought 
under the above 'od valorem scale and is not a Will : 

(20) A fixed fee of — .,. 10 

II. — For granting a copy of an inBtrument as entered in 
the Hegidter, or of a memoraudum filed under 
rale 2SX to any peraon wlio is not a - party to the 
Instroment to which such entry or memorandum 
relates or the agent or representative of a party 
thereto 4 

III. — For a search for or inspection of any entry in a 

Register by any applicant 2 

Note {a) — When the applicant is a party to an instrument 
or is an agent or repreeentatiTe^f such party, no fee 
for a copy or for search shall be leried if the 
applicant or his principal has not preyiottsly ibeen 
famished with a copy of such instrument or hus 
not made any previous application for each search. 

♦ Bee notification Wo. 912, (11th Feb. 1902), B. Gt. G. for 1902, pt. I, p. 261. 
t See notifications Nos. 6794 and 7317 of 1903 ; B. G. G. part I, pages 
125#and 1340 respectively, 
t See notification No. 9381 cited ante* 



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52 Village-registration Rules. 

IV.— For a search for or inspection of any entry in a 
Kegister, when the search is made by Village 
Re^trar 4 

!An extra fee equal 
to the ordinary 
fee in addition to 
Imtta at the usual 
rates. 

VI.— For the attestation of a power-of-attomey : 

{a) if special ,.. 2 

(ft) if general 4 

Note (a). — In the oase of leases, the amount or value of the 
consideration on which the ad valorem fee is to be assessed under 
Item I (a) of the above table shall be as follows : 

If the lease is granted : The fee will be assessed on : 

(1) in consideration of the payment ( the amount of such 
of a fine or premium only, J fine or premium paid 

(^ or payable ; 

(2) in consideration of the payment f the average annual 
of a fine or premium, in addition j rent reserved, in 
to rent reserved, \ addition to the amount 

(_ of fine or premium ; 

(3) in consideration of the payment C the average annual 
of an annual rent, without the^ rent reserved ; 
payment of fine or premiuci, ( 

(4) for a period less than a year, J the total sum payable 

I under the lease ; 

.... . , c -x .1 r *^® average annual 

(0) for an indefinite period, J ^ rent payable for the 

(^ first ten years. 
Jfote (i),— If a patta or lease be given to a cultivator and a 
^5d!a?/a« or counterpart of such patta or lease be prepared and 
registered in the same office and on the same day as the patta or 
lease, the fee chargeable in respect of the two documents shall not 
be greater than the fee chargeable for the patta or lease alone. 

Note (c), — ^In the oase of annuity-bonds and service-bonds and 
agreements to hire moveable property, the amount or value of the 
consideration on which the ad valorem fee is to be assessed under 
the item aforesaid shall be as follows ;~ 



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Village-registration Rules. 53 

If the annuity-bond, service- ^ The registration fee will be 
bond or agreement is > assessed on; 
granted or passed : j 

(1) for a definite period 1 the average annual amount to 
exceeding one year, j be paid during the period ; 

(2) for an indefinite period, ) the average annual amount to 

j be paid during the first ten years; 

(3) for a period less than a ^ the total amount payable under 
year, Vthe annuity-bond, service-bond 

) or agreement. 



Note (d), — If in any of the above cases the rent, annuity or 
remuneration is payable partly in money and partly in kind and the 
money value of the portion payable in kind is not expressed, the fee 
will be charged at twice the amount of the ad valorem fee chargeable 
in respect of the amount payable in money. And if the rent, annuity 
or remuneration is payable entirely in kind and the money value 
thereof is not expressed, a fixed registration fee of Es. 2 will be 
charged.* 

VII.— For the safe custody and return of any orjt^inal 
instrument which, having remained in the hands of the 
Village Reg^istrar for sixty days from the date of its 
registration, as unclaimed by the party entitled to the 
custody of the same, has been forwarded under 
Rule 39 to the I'aluka or Petha Village Registrar— 

Rs. a. p. 
For every day that such original instrument remains in the 
custody of the Taluka or Petha Village Hegistrar up to 
the day when it is claimed by a party entitled to its 
custody 1 

Provided, however, 

(1) that no fee in excess of Rs. 3 shall in any case be levied 

for the custody and return of any such original 
instrument ; 

(2) that the Inspector-General shall be empowered to remit 

any such fees in whole or in part in any particular case. 

* This item No. VU is amended by Notification No. 9381. B. G. G. for 
1896 pt. I, p. 1178, 



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54 



Village-registratioii Rules. 



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Viliage-r^istration feules. 55 

Rules for carrying out the provisions of 
this Act.* 



-»o>OCo« 



"The Act " means the Deccan Agvioultorists' Relief Act, 1879, 
Definition. as amended by subsequent enactments. 

48. No Village Registrar shall prepare or register any 

instrument under the provision of the Act to 

Certain Villftge ^^ich he or any member of his family is a 

parl'^'orr'^^^^^ pa^ty. For the preparation or registration of 

ments in which they g^^y gQ^Ji instrument the parties shall be 

are interested. ^^^^^^^ ^ ^^^ ^^j^^^^ ^^ p^^j^^ y-jj^^^ 

Registrar who has concurrent jurisdiction. 

49. No Village Registrar shall prepare or register any instru- 

ment under the provisions of the Act, unless it 
Recital as to pay- gV^j^j] b^ stated in the body of such instrument 
men o consi era n. ^jjg|.{j^p ^j^^ consideration mentioned in the 
instrument has already been paid or is to be paid hereafter, and if it 
has been paid, the manner in which such payment was made shall 
be fully set forth. 

50. For the purpose of section 57 of the Act, the powers-of- 

attorney next hereinafter mentioned shall 

rower»-of-attorney alone be recognized (that is to say), — 
recognizable for pur- 
poses of sec. 57. 

(a) if the party executing a power-of-attorney at the time of 

executing the same resides in any district in which the 
Act is for the time being in force, a power-of-attorney 
executed before and authenticated by the Registrar or 
Sub-Registrar or Village Registrar within whose district, 
sub-district or village such party resides ; 

(b) if the party at the time aforesaid resides in Britbh India, 

but not in any district in which the Act is for the time 
being in force, a power-of-attorney executed before and 
authenticated by any Magistrate, Registrar or Sub- 
Registrar ; 

(c) if the party at the time aforesaid does not reside in British 

India, a power-of-attorney executed before and 

♦ See Notification No. 7189 B dated Hth September 1896. B. G» G. for 
1898 pt, I, p. 974, 

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56 Miscellaneous. 

authenticated by a Notary Pablio, or any Court, Judge, 
Magistrate, British Consul or Vice-Consul, or represen- 
tative of her Majesty or of the Government of India. 

51. In authenticating or attesting a power-of-attorney the 
following form of endorsement shall be adopted by Village Registrars: 

Executed by A. B. of C. D. in my presence on the (date ). 

He is identified by E.F. of G.H. 

These endorsements shall be signed by the Village Registrars 
attesting the power-of attorney. 



Miscellaneous. 

Description of suits to be heard by the Subordinate 
Judge of Poona.t — It is directed that any suit of the descriptions 
mentioned in section 3, clauses (w) and (x) of the said Act, 
which the Subordinate Judge of Poona would be precluded from 
hearing by section 12 of Act XI of 1865 shall, if the defendant or 
any one of the defendants, not being merely a surety of the principal 
debtor, is an agriculturists, be beared and determined by him and 
not otherwise. 

Description of suits to be heard by Subordinate Judges 
of Hyderabad, Shikarpur, Hala and Larkhana.^ — It 
is directed that any suits of the descriptions mentioned in 
clauses (w) and (x) of s. 3 of the said Act which the Subordinate 
Judges of Hyderabad, Shikapur > Hala and Larkhana, respectively 
would ordinarily hear as Courts of Small Causes under the 
jurisdiction in that behalf conferred on them under s. 28 of the 
Bombay Civil Courts Act 1869, shall, notwithstanding the provisions 
of s, 16 of the Provincial Small Cause Courts Act 1887, be heard 
and determined by them in the exercise of their ordinary jurisdiction 
as suits which are not cognizable by a Court of Small Causes, and 
not otherwise. 



t Notification ]No. 7957 dated the 22nd November 1879. B. G, G. for 
1879, part I, p. 934. 

+ xNotification No. 1664 dated 13th March 1901. B, G. G. for 1901, part I, 
p. 490. 



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Miscellaneous. 57 

Form of Summons to defendant in suits under this Act* 

(TITLE). 

To 

Dwelling at Whereas .....has in* 

• Notice,— Should you apprehend stituted a suit against you for 

your witnesses will not attend of i. u • j i = 

their own accord, you can have 7^^ a^® ^^^^^J required to appear in 

summonseB from this Court to person before this Court to give 
compel the attendance of any . i ,i jr. 

witness and the production of any evidence on the day of 

document that you have right to at the hour of A, 41. 

call upon the witness to produce 
on applying to the Court at any As the day fixed for your 

^^Mfz'^'^'ctuT^k -pp-'^*-« - «ppo-t«^ fo^ '^^ fi-j 

subsistence money. disposal of the suit you must be 

prepared to produce all your witnesses on that day ; and you will 
bring with you..*...... which the plaintiff desires to inspect, and any 

documents, on which you intend to rely in support of your defence. 

A sum of Rs. being your travelling and other expenses, 

and subsistence allowance for one day, is herewith sent. 

(Note, — ^The following notice to be pasted on the above summons in 
cases where the plaintiff asks that this should be done). 

-You are further informed that the said plaintiff has presented with 

his plaint the following documents, namely : (Describe documents). 

You are hereby required, within four days from the receipt 

This admission may of this summons, to file in this Court a written 
be made without pre- i • • • j r xi. j. ^i_ r 'j 

judice to all other just admission, signed by you, that the aforesaid 

grounds of defence. documents are genuine, or within four days to 
appear in person and make such admission. If you fail to do this, you 
will be liable, whatever may be the result of the suit, to bear the ex- 
pense which the plaintiff may incur in proving the aforesaid documents. 

Given under my hand and the Seal of the Court this 
day of 190 . 



[ Seal, ] 



Judge. 



* See H. 0. Circular order form No. LXXVIII. B. G. G. lor 1903, pt. I. 
pp. 388, 389. 

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58 Miscellaneous. 

The above form of summons should be used only in ^ei case of 
suite other than suits for an account under section 16 of Act XVII 
of 1879. 



Execution of decrees § :— Decrees of the nature shown 
agaipst the following Districts shall be transferred to the CJollector 
for execution : — 



Foona 

Satara 

Sholapur 

Ahmednagar, 



Decrees ordering. the sale of any immoveable 
property belonging to a person who is an agricul- 
turist within the meaning of the D. A. R. Act, 
which has been specifically mortgaged for the 
repayment of the debt to which any such decree 
relates. 



Concession in Process-fees 1 : — 1 The fees levied for .all 
processes in suits to which Chapter II of this Act applies, except suits 
of the description mentioned in section 3, clauses (w) and (x), to which 
an agriculturist is not a party, shall be one half the fees which would 
be leviable in similar suite to which the said Act does not apply. 

2 No fee shall be levied for the service of any notice or 
othor process issued in proceedings taken under Chapter IV of this 
Act 

3 Nothing contained in these rules (or in any rules 
heretofore made by the High Court under section 20 of the Court 
Fees Act) shall apply to process issued by a Yillage-Munsif, under 
Chapter V of this Act. 

Records : — In the Districts in which this Act is in operation, 
the records of all suite, decided by Subordinate Judges under the pro- 
visions, of Chapters II and IV of the said Act, shall be forwarded 
quarterly to the Record-keeper of the District Court, instead of 
monthly, as directed in clause (i) of No. 142 of the High Court 
Circular orders Chapter Illf 

§ See H. C. Circular order No. 17 ; S. G. G. for 1903, pt. I, p. 306. 
^ do. do. do. 117 notes IX-XI ; B. G. G. for 190^* 

pt. I, p. 312. 
t do. do. do. 142 ; B. G. G. for 1903, pt. 1, p. 316. 



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Reduction and Remission of Court-Fee. 59 

The (Jestrootion of records in the Courts of Village-Munsifs is 
regnlated by the same rales as regulate the destruction of records in 
the District and Subordinate Courts4 

The agreements or Kabnliyats made before Conciliator are 
preserved under High Court Circular order noted below.* 

Reduction and remission of Court-Fee. § 

Under section 35 of the Court Fees Act (VII of 1870) the 
Governor-General in Council has been pleased to make the fol- 
lowing reductions and remissions; 

(1) To remit the fees chargeable on plaints under section 16 
of this Act, except in the District of Satara, where the 
said fees shall be reduced to one-half. 

(2) To remit the fees chargeable in respect of the documents 
specified in the 1st and 2nd Schedule in the case of suits 
for the redemption of mortgaged property, when the 
plaintiff or (where there are several plaintiffs), any one 
of the plainti&, is an agriculturist, and when such suits 
are instituted within the districts of the Bombay 
Presidency in which this Act is for the time being in 
force, except in the District of Satara, where the fees 
shall be reduced to one-half. 

No Court-feo is payable on an appeal by a non-agricalturiflt defendant 
in a redemption-sait brought by an agriculturist. f 

(3) To remit the fees chargeable in respect of powers-of- 
attorney, furnished to relatives, servants, or dependants 
under section 68 of this Act 

(4) To remit the fees chargeable in respect of the documents 
specified in the 1st or 2nd Schedule in the case of suits 
instituted before Village-Munsifs under Chapter V of 
this Act. 

% See H. C. Circular order No. 143; B. G. G. for 1903, pt. I, pp. 316, 317. 
» do. do. do. 13; do. 1904, do. p. 1353. 

§ Notification No. 4650, dated lOth September 1889 paras 28 to 34 ; the 
Gazette of India for 1889, pt. 1. pp. 506 to 509. 
t Zakshman v. Eamji, 1883. P. J. 163, 



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60 Exemptions under the Stamp Act. 

(5) To remit the fees chargeable in respect of prooeedings 
taken under section 19, second clause of this Act."* 

(6) to remit the fees chargeable in respect of proceedings in 
matters relating to insolvency under Chapter IV of this 
Act. 

(7) To reduce to one-half the fees chargeable in the case of 
suits to which Chapter II of this Act applies, except 
suits of the description mentioned in section 3, clause {w) 
or clause (x) of that Act to which an agriculturist is not 
a party : 

Provided that, when the reduced fee amounts to a fraction of 
an anna, the fee chargeable shall be one anna : 
His Excellency the Govornor-in Council has been pleased to 
authorize the Sub- Judges of the 12 Talukas named below to refund 
to the plaintiff one half of the institution fee in all cases in which 
one of the parties is an agriculturist, as defined in this Act and in 
which the Court passes a consent-decree at the 1st hearing of the 
suitt 

Taluha. District. 

Khed Poena. 

Akola, Pamer, Sangamner, Jamkhed,*Karjat. Ahmednagar. 

Sangola, Malsiras w Sholapur. 

Patan, Khanpur, Man, Javli Satara. 

Exemptions under the Stamp Act4 

The following instruments are exempted from Stamp duty :— 

(1) Agreement of the kind described in s. 43 of this Act. 

(2) Power-of-attorney furnished to a relative, servant or 
dependant under s. 68 of this Act. 

(3) Copy of an instrument which a Village-Begistrar has 
to deliver to a party under s. 58 of this Act. 

* This remission is now of no avail inasmuch as s, 19 itself has been 
repealed. 

t Notification No. 6822, dated 27th September 1884, B. G. G., parti, 
p. 868. 

t See Notification No. 785, paras 2, 46 and 47 ; Gazette p! Indifi for 
^899, pt. I, pp. 250, ^52. 



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Exemptions under the Stamp Act. 61 

The duties chargeable under Article No. 15 of Soh, I to the 
Stamp Act (II of 1899), on a promissory-note payable on demand or 
otherwise than on demand and not payable at more than one year 
after date or sight, to a certain person and not to order or bearer 
when such note is executed by an agriculturist, and is attested at the 
time of execution by a Village-Registrar, under s, 57 of this Act, is 
reduced to the amounts respectively chargeable under Sub-heads (a) 
and (b) of Article No. 13 of the said Schedule, on bills of exchange 
payable on demand or otherwise than on demand as the case may 
be, t 

X See Notification No. 1472 ; B, G. G., for 1904, B. G. G., part I, p. 255. 



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PART III. 

CONTAINING 

The Proceedings of the Legislative Council 

WITH BESPECT TO 
THE 

Dekkhan Agriculturists' Relief Act, 

1879 to 1902. 



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64 



Table of contents of Part III. 



ACT XVII OF 1879. 

Statement of Objects and Reasons ••• •«. 65—67 

Honourable Mr. Hope's Opening Speeoh ... 68 — 82 

Discussion ••• ... ... ••• 82 — 88 

Honourable Mr. Hope's Reply ... .•• 89—91 

Report of the Select Committee ••• ... 92-^103 

AMENDING ACT XXIII OF 1881. 

Statement of Objects and Reasons ... ... 104 — 106 

Speech of the Honourable Mr. Gibbs ... 106—107 

AMENDING ACT XXII OF 1882. 

Statement of Objects and Reasons ... ... 108—111 

The Honourable Mr. Hope's Opening Speech... 112 — 113 

„ ,9 Speech on the 

report of the Select Committee ... ... 114 

AMENDING ACT NO XXIII of 1886, 

Statement of Objects and Reasons 115 — 117 

The Honourable Sir Theodore Hope's Opening 

Speech ... ... ... ... 118—119 

The Report of the Select Committ^... ... 119 

AMENDING ACT VI OF 1895. 

Statement of Objects and Reasons ... ... 120 ^^121 

Speech of the Hon'ble Mr. Lee Warner ... 122 — 123 

Report of the Select Committee ... ... 124 126 

Speech of the Hon'ble Mr. Lee Warner on the 

Report of the Select Committee ... 127 129 

AMENDING BOMBAY ACT I OF 1902. 
Statement of Objects and Reasons ... 

^% The proceedings of Acts XII of 1891 and Act XVI of 
are not given in this part, as those Acts are general repealing Acts. 



130 



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PART 111. 

Proceedings of the Supreme Legislative Council. 
Statement of Objects and Reasons 

FOR 

Act XVII of 1879. 



1, The inqniries made into the oaiffies of the riots ^rhich 
occurreJ in the Dekkhan districts ia 1875 and the disonssioos whioh 
have since taken place show that the difficnlties nnder vfhidx the 
agricalturists in those districto labour are dne, in a great measure, 
to the ansatisfadx>ry nature of the relations at present sobsisting 
between them and the money-lending classes, 

2. In order to put those relations on a better footing, it b 
deemed necessary — 

Firsts to provide some safeguards against the money-lendars 
committing frauds in their accounts and obtaining from ignorant 
peasants bonds for larger amounts than are actually paid to or due 
from them. 

Secondly^ to arrange disputes by conciliation as far as possible ; 
to increase the number of Courts, and to simplify and cheapen the 
administration of justice, and thus to afford facilities to the 
agriculturist to defend any snit that may be brought against him ; 

Thirdly^ to insist that in suits against agriculturists the Court 
shall in certain cases of its own motion investigate the entire history 
of the transactions between the parties, and do substantial justice 
between them ; 

Fcurthly^ to restrict the sale of the raiyat's land in execution of 
decree, and to provide an insolvency-procedure more liberal to the 
debtor than that of the Code of Civil Procedure* 
I 

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€6 Statement of Objects and fteason& 

The present Bill has be^ drafted with a view to secariag ttraee 
objeots, in so far as they can be secured by legislation. It extends 
only to the four districts in which tiie agricultural distress has been 
most felt. 

3. An attempt has been made to secure the first object by 
sections 55 to 68, providing for the appointment ofVillage-Begistcars 
before whom every written obligation for the payment of money by 
an agriculturist must be registered ; by septions 64 to 67, r<equiring 
money-lenders to give receipts to agriculturists for all payments 
made by them, to render accounts, and to famish a pass-book 
in which the agriculturist's account will be periodically written up ; 
and by section 71, which invalidates all mortgages created by an 
agriculturist otherwise than by a written instrument. 

4. With a view to the second of the proposed objects^ the Bill 
provides in sections 40 to 50 for the establishment of a system of 
oonciliation under which it is hoped a large number of disputes will 
be settled out of Court ; and in sections 86 to 89 for the appointment 
of Villi^e-munsife, like those in the Madras Presidency, to dispose of 
petty cases. A further additi(m to the machinery for the disposal of 
suits will bo made by an increase of the numbe;: of Subordinate 
Judges ; but as this is a matter which it is competent to the Local 
Government to deal with under the existing law no reference to it 
will be found in the Bill. 

5. As regards procedure, it is proposed, with a view to a more 
rapid despatch of business and to diminishing the cost of litigation, 
to simplify the record in certain respects (sections 10 and 11), to 
discourage the employment of pleaders in petty suits (section 69), 
and to substitute for the present system of appeals a very strict and 
searching supervision (sections 51 to 54). 

6. Sections 12 to 16 provide in certain cases for a thorough 
investigation into the history of the transaction between the parties 
(the third of the four objects mentioned above)« They prescribe the 
system in which the raiyat's account is to be made up in cases where 
the Court finds it necessary to set aside oppressive or inequitable 
arrangements between the parties, and they guard especially against 
exorbitant demands for interest. 



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ActXVnofi879. 67 

7. The presence of tbe defendant being essential for the 
thorough investigation proposed, and the raijats being, through 
various diffionlties, apt to leave their suits undefended, it has been 
provided (m section 9), that except for special reasons, no suit shall 
be decided ^xparte, but that tho Court shall compel the defendant to 
appear. 

8. The last of the four objects proposed will be found provided 
for by sections 25 and 33, which enact that land shall not be sold to 
pay the debt of the owner except where it has been specifically 
pledged, but admit of its profits being made available to the creditor 
for a term of years, and by the sections relating to insolvency. 

9. The chief points in which the provisions of the insolvency 
chapter differ from those of the Code are that they allow an agricul* 
turist to apply to be adjudicated an insolvent, though no process in 
execution has been issued against him, that they entitle him to an 
adjudication in all cases in which, as a matter of fact, be may be 
insolvent, leaving any misconduct on his part to be punished under 
the Code of Civil Procedure ; and that they similarly entitle him 
in all cases to complete discharge from debts which, after all 
reasonable enforcement, he is unable fully to pay. 

10. This insolvency procedure is further supplemented by 
section 20, which gives the Court a summary power in petty cases 
to discharge a judgment-debtor who is clearly insolvent, and by 
section 22, which abolishes imprbonment or debt. 

11. The only other provisions of the Bill which appear to call 
for special notice are section 70, which empowers the Court to direct 
the Government pleader to appear on behalf of a raiyat when he is 
nnable to engage the services of a professional advocate and the 
opposite side is represented by a pleader, and section 72, which 
extends t )e period of limitation in suits for debt instituted against 
agiiculturists. This latter provision has been introduced into the 
Bill, as there appears to be a pretty general consensus of opinion to 
the effect that the difficulties of the raiyat are much aggravated by 
the present law of limitation which compels the moneylender at 
very short intervals to sue him or take a fresh bond either of which 
^teps commonly entails a considerable addition to the debt. 

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68 Honourable Mr» Hope's Oi>eni0g Speech, 

OPENING SPEECH. 

An extract, front the^ Speech cf the Hon^hle Mr. 
Hope made on the occasion of introducing the BiU in 
181 9 y for the relief of agriculturists in certain parts 
of the Dekkhan — 

« The « Dekkhan riots ' began in May 1875. They extended to 
83 Villages in the IHstriois of Poena and Ahmednagar and many 
more were threatened ; but order was restored within a monfh's 
time The movement was simply an organised, and temper- 
ately but determinedly oondncted effort, direoted to the definte object 
of obtaining and destroying the bonds, decrees and aoconnt-books of 
the money-lenders. No persons except the latter were molested* The 
mobs were composed of respectable members of the community and 
were often led or encouraged by the headmen of the Tillage. On 
attaining their object, they dispersed as rapidly aud quietly as they 
had come together 

Tlie riots have been foUo^^ed by investigations in various forms. 
A Special Commission, in the first place, was without delay appointed 

by the Bombay Government Their report, in five volumes 

and above 1,500 pages, is a very able survey of the diflScuIiy in all 

its aspects I^e Central Dekkhan, which is the locality 

principally distressed, consists of four districts, Poena, 

Ahmednagar, Sholapur and Satara ...The state is the landlord.... 
The peasant-proprietors themselves cultivate about three^fonrths of 

their land and sublet the remainder The proportion and extent of 

indebtedness are not easy to ascertain...As compared with former 
times and with Native States, indebtedness now in the Dekkhan 
extends to smaller numbers, but is heavier in individual incidence, 
followed by consequences infinitely more serious, and decidedly 

abnormal and.. .we must enter into a critical examination of its 

probable causes before we can hope to apply an effective remedy. 
These causes...may be conveniently classed as ^ ncnnnal ' and ^special.' 
The normal causes are those which may be found at work, more or 

♦ Vide Proceediogs in Governor-GeDeral's CoudcU for the purpose of 
making laws and regulations (for the year 1879) Vol, 2CVIII, pp. Ii6 to J53, 



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Honourable Mr. Hope's Opening Speech. 69 

less, ftt all times, and some in all parts of India, others only in 
certain localities. First of tbese stands poverty. ...^ext to poverty 
comes ignorance^ whiob renders the unlettered peasant nnable to read, 
and tyften to understand, the documents and acconnte in which he is 
vitally concerned, or to state and substantiate in a Civil Oourt a good 
defence when he has one, and thus makes him a tempting subject for 
every kind of roguery. Sodai observances^ such as marriage, birtii and 
funeral espouses, also swell the roll of obligations... Imp^Wif^ru^ 

mnsi be admitted to contribute its share to the catastrophe To 

ibis may be added an honest and confiding, rather than vigilant, 
temperament, a soil yielding but one crop, and therefore the whole 
yearns income at one period, a climate so capricious as to preclude at 
seed-time any safe estimate of what the harvest, if there be one, will 
be worth, and prices varying above cent-per cent. 

Besides these normal causes conducive to indebtedness, there 
exists a long array of special ones: some general in their operation, 
others peculiar to the Bombay Presidency or the Dekkhan alone, 
^ese I propose to notice in four groups — ^^namely, those increasing 
credit, diministing ability to repay, proceeding from tiie revenue* 
^rstem, and comprised in the term ' arming of the money-lender.' 

Xn<»^ased credit obviously flowed from our establishment of a 
settled Government, and the consequent immunity of the raiyat from 
bring plundered and murdered by hostile armies, or drawn from 
his fields, perhaps killed in battle, on his own fiide, as also from the 
grosa^ forms of private crime. A like effect followed our land- 
8ettlement8...Under the Native Government a cultivator could not, 
according to custom, be ejected as long as he paid ihe revenue 
demand ; but that demand was so big h that his right of occupancy 
was worth Httle or notiiing, and was besides, mostly not recognized 
as saleable. .oUnder our settlement, however, ^ this right of 
conditional occupancy' (to quote Bombay Act I of 1865) *is 

declared to be a saleable and transferable property', 2*he arming 

of the money-lender is a general term which £ shall apply to the 
process of increasing in numberless ways the legal power of creditor 
over debtor, which has been synonymous with the elaboration of our 
Indian law procedure.... The procedure is highly elaborate and 
technical ; the penalties for contravention of it severe, and litigation 
dangerous without the guidance of a pleader^.The procedure is the 



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TO Honourable Mr. Hope's Opening: Speech. 

a$m^ for a debt of B8« 5 and Bs. 5,000, except in the rare instaDoes 
w^Ofip Small Canse C/onrts are established. Stamp and Court 
exp^ll^es have nearly doubled. Arbitration has been gradually 
shouldered out... Suits may be heard ^^par^tf in the absenoe of the 
defendant, and are found to be so, in the four Dekkhan districts, in 
above half of the caseci. Great weight is attached by the Courts tp 
bonds.f ••••However fraudulent, extortionate or in excess of considerop 
tion ^ bond may be, the burden of proof lies on the debtor, and in 
practice his defence is generally hopeless..,.The reduction of the 
limitation period for bonded debts from twelve to six and in some 
cases three years, and for simple money debts from six to three years, 
respectively, has subjected the debtor to compound interest, frequent 
suits, extra costs and a vast increase of hb liabilities. The power of 
obtaining arrest and imprisonment gives the creditor the means of 
extorting almost any terms for his forbearance in exercising it. The 
power of sale in execution extended till 1877, to everything the 
debtor possessed ; since then certain bare necessaries have alone been 

exempted. Of all sales it is a characterbtic that the property, 

through technioal difficulties, constantly goes for a mere song, and 

the creditor is the purchaser If the persecuted debtor turned 

towards the law of iusolvency, until actually arrested or in jail» 

he could not resort to it at all ; and whether, after doing so, he 
escaped its pitfalls and two years' imprbonment or not, his 
subsequently acquired property and earnings were liable (unless his 
debt was under Bs. 100 and tiie judge chose to discharge him) until 
the last pice ^hQj with interest, had been repaid. Final ly« the increase 
of work entailed delay, with loss of time and money, in the dbposal 
of cases....... The tendency of the change of relations thus gradually 

brought about by the law will be seen to have been all one way — 
in favour of the party possessing the most intelligence and money.. «iiii 

Having thus enumerated the various causes of the raiyat's 
indebtedness, £ will briefly classify them according to the possibility 
or expediency of remedial measures... .Ignorance, improvidence and 
extravagant ceremonial or social expenditure can never be eradicated 
from the world, either in the Dekkhan or elsewhere, though time, 
experience and education may reduce their strength... As causes 
regarding which interference is undesirable may be mentioned the 
increased gredit due to orderly Government, property in land and 



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Honoiirable Mr. Hope^s Openiii^ Speech. 71 

competition of money-lenders, and jbhe leesened ability to repay arising 
from the diminntion of waste land for fallows and grazing by the 

extension of cultivation and forest reserves Respeoting the other 

causes, action, either executive or legislative, seems open to us... 
Legislatively, what we can do,... what we undoubtedly Ought to do 
promptly and effectively, is to restore, as far as may be, the rude 
balance between debtor and creditor, which has been disturbed by 
our own legal institutions. We may take back many of the weapons 
inconsiderately placed in the money-lender's hand and shown to have 
been misused The problem before us is how to keep the. money- 
lender iu his place, to encourage and support him in all useful 

functions, but to restrain him from becoming the enemy and 

oppressor of the poor ? The leading pinciples of our new measure 
then should be to give both sides fair play, instead of setting the two 

classes by ears We must foster due credit, check that which 

is undue, and allow free scope to all civilizing processes and healthy 
relations between capital and labour «.,. 

I will now endeavour to set forth, as clearly and fully as time 
and the occasion permit, the principle provisions of the bill I am 

introducing and I shall discard its arrangement, and 

endeavour to express in plain English the effect which its provisions 
(coupled with the Code) are intended to produce. 

The first object aimed at is to establish precautions against 
fraud by either debtor or creditor in their original transactions with 
each other, and so keep them on good terms and out of Court, as far 
as possible. The Commission thrfs enumerate the chief frauds which 
ar« practised : — 

J9y c^r edaW—(l) forging bonds; (2) withholding the consider- 
ation mentioned in bond ; (3) obtaining new bonds in satisfaction of 
^Id bonds and of decrees and nevertheless enforcing the latter ; (4) 
not giving credit for payments ; (5) refusing to explain or wrongly 
representing their accounts to debtors. 

Bf/ debtors— {&) tendering in evidence false receipts and false 
evidence of alleged payments ; (7) pleading that bonds are false 
when they are really genuine. 

Chapter YllI of thb Bill is intended to meet the first three and 
the last mentioned kinds of frauds. It provides that every instrument 



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72 Honour^de Mr. Hope's Opening Speech 

to which an agriooltnrist is a party shall be written by or under ihe 
Snperintendenoe of a Village Registrar, es^eoated ia his preseooe, and 

attested by him ; »^, iiastrnments not so executed will be invalid* 

By these means every raiyat should at least know what he signs, 
and both parties should receive due protection. Chapter IX^ 
directed against the remaining three kinds of fraud, provides, under 
a penalty, for the grant to raiyats on demand of written receipts, 
annual statements of their account, and pass-books, and for the latter 
being written up from time to time and attested by the money-lender 
These two chapters are based on recommendations of the C!oni- 
miasion •^ 

The next step contemplated is that, whenever serious misunder* 
standing unfortunately arises between money-lender and raiyat, 
either party should be able to resort to a friendly non-judicial 
authority bound to use his best offices to reconcile the two, and that 
no litigation should be commenced without a certificate from the 
Conciliator (as the authority constituted by (Chapter VI will he 
termed,) that his endeavours in this behalf have failed. .••.. 

Supposing that, notwithstanding all the preceding precautions, 
the dispute unfortunately developes into litigation, the Bill next 
endeavours to place the Courts of law within easier distance from 
the homes of the people, and to make them more absolute, less 

technical, less dilatory and less expensive In pursuance of 

the objects just named, Chapter V empowers the Local Government 
to appoint any Patel of a Village, whom it deems con»petent, to be 
Village-Munsif for his own Village, or, if desired, for other Villages 
also within a radius of two miles. The Munsif s jurisdiction will 
be limited to suits for money not exceeding ten rupees, and will 
generally follow the modd of the Madras Village-munsif's system, 
constituted under Madras Regulation FV of 1816, except that the 
Mundf will not have, as there, a further jurisdiction, by consent of 

parties, extending up to Bs. IQO This Madras system is well 

worthy of attention These Munsi& dbpose of nearly one- 
fourth of the whole Civil litigation of the Presidency ••• 

Although, however. Village munsifs may thus be a fairly efficient 
institution in Madras, where they are a survival of the ancient times 
and where society is still in a comparatively simple state, it wpuld 
be imi)08sible at the present day to constitute them by law through- 



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Honourable Mr. Hope's Opening Speech. 73 

out all Villages or Yillage-olrcles in our Dekkhan districts 

Oar advanoed conditions postulate a more skilled judicature, better 
Judges, and, consequently, fewer of them ; and these the Government 
must in the main provide. At the same time, there can be no harm 
in taking advantage of the present opportunity to empower the 
Government to invest with petty jurisdiction up to Rs. 10 any 
Village Patels whom it may here and there find to be qualified by 
education and character. 



•••••••••••• 



Next above these new Munsifs Courts come the existing Oottrts 

of Subordinate Judges, who are all trained officers. •• Their 

powers will be considerably increased. By Chapter II of the 

Bill all Subordinate Judges in the four districts will be invested 
with what are termed Small-Cause-Court powers, but enlarged so as 
to include mortgage-cases of the class in which agriculturists are 
so commonly involved. And by Chapter IV they will all receive 
juii^iction in insolvency. The question of bow far the summary 
jurisdiction, not open to appeal, which the Small-CauseCourt model 

implies, might safely be entrusted to the ••. Subordinate Judge 

has received careful consideration It is considered that such 

jurisdiction may be conferred on the first class Subordinate Judges 
up to the full limit allowed in the Moffusil Small-Cause-Court's Act 
namely, Ks. 500, and on the second class Subordinate Judges up to 
Bs. 100 absolutely and up to Bs. 500 by consent of the parties. •..•• 
But three special safe guards are proposed in Chapter VII. Firstly^ 
Inspection : — A Special Judge will be appointed to inspect, supervise 
and control the proceedings of the Subordinate Judges, Munsifs and 
Conciliators under the Act in all the four districts, and see its new 
principles and policy effectively carried out. The Special Judge 

will be aided by a Special Assistant Judge or Subordinate 

Judge .•!.....• Secondly — Revision. — The power of revision vested in 
the High Court by section 622 of the Code of Civil Procedure is 

extended.. to the Special Judge, who will be enabled to call for 

and examine the record of any case and correct failure of justice, as 
also similarly to deal with cases called for and referred to him by his 
assistants just mentioned. The powers of the High Court under the 
same section will remain intact. Thirdly — ' Sitting in banco*— TlxQ 
Special Judge and the assistants with his authouzation are enabled 
to stay the proceeding in any case pending in a Subordinate Courti 
J 

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f4 Honourabte Mn Hopfe*s ^ning Speeitl* 

and to rft with ihe Jtodge as a Bench to try it. The power ofwitli- 
drawingaoaee and trying it himself, or tmnsferring it to another 
Conrt^ which the District Judge possenes under «. 85 of the Oodo df 
CSvil Procedure, will also be exerdsed by the Spedal Judge, and fay 
his assistant with his authorization. •••• 

The procedure followed by the Coarts under their new jurisdiction 

will be pretty nearly that of Small-OeiuseGourts One ezr 

oeptioD, however, is so important as to require special mention* 
The Commission pointed out that the praporti(m iof cases de(Aled ia 
Bombfi^ ex parte^ or in &e abselice of d^Nidani, vastly exceeded that 

iaany other part of Indian This has been asmbed to a 

varied of cairaes, <^ which the dbief probably are igiK^rance of the 
raiyat that he has a deftoce^ want of mea^ to pay a pleader, oon- 
victi<m that the Court, for want of time or other reasons, will ud go 
into the merits of his cbbo or look behind the bond, fear of irritatiE^ 
his creditor by % defence or fraudulent non-eervice of summons, 
^e various provisions of the present BUI, howev^, completely alter 
ihe positioii. The obligation laid cm the Court of going into the 
whole merits of the case, and behind the bond, if necessa^, to whidii 
I shall presently allude, wiH remove the first three of the above 
causes of backwardness osx H^ raiyat's part, and will probdbly lead 
to his more frequent voluntary i^pearance. ...••.••• Compulsoty 
attendance will meet the other two causes of absenc^^ above mentioned. 

Closely connected with the qnestion of procedure is that of how 
ifar effect should be given to the suggestion of the Secretary of State 
that possibly it would be desirable to exclude professional pleaders 
from the ^ Courts with summaty jurisdiction and without appeal up 
to a limited amount ^ which lie desires. Upon this point we have 
two precedents. The French Code excludes all skilled advocacy 
from the Courts of the Judges dePauv^ whether in conciliation or 

trial of suits The Madras Regulation for '^^llage-Munsifs 

excludes professionals, but allows the deputation of a relative, servant 
or dependent — so that, for instance, a saukar could send his Gumashta 
and a raiyat could send or bring with him a clever son or, nephew 
educated in a Government School. It may be true that where a 
case, involving even a moderato amount, is intricate owing to 
mortgages or other exceptional circumstances, a competent pleader 



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Honourable Mr* Hope's Opening Speech. 75 

may be of much use both to the parties and ibe Conri On the 
otbeir hand, it must be admitted that a pleader is a weapon at the 
oommand of the rioh alone (one Subordinate Judge even states that 
n pleader who often took raiyats' oases would lose his best 
onstomers) ; that in simple suits a pleader oan often add nothing of 
value to what is in evidenoei but only wastes time and introduces 
confusion ; that the presence of pleaders pre disposes some Judges to 
decide on what counsel put before them instead of gobg independently 
into the merits. Upon a balance of such considerations, the draft 
Bill followed the Madras law in excluding pleaders, but admitting 
non-professionals, in all oases before a Yillage-Munsif or Conciliator 
•••••• The appointment of a pleader by the Court in cases where 

the debtor needs counsel but cannot obtain it is alap provided 
for. ^.,., 

Having thus noticed the proposed reorganization of the Courts, 
I proceed to explain some important changes contemplated in the 
substantive law which tbey administer. These group then^selves 
loundtwo main heads, — the definition of a debtor's liability, and 
the mode and extent of its enforcement. 

A Court proceeding to determine the amount of a debtor's 

liability is met ...••.... by the undeniable fact that •• Hhe 

passing of a bond by a Native of India is often of no more value 
as proof of a debt he thereby acknowledges than the oenfesaion by 

a man under torture of the crime he is charged with.' ••.., « That 

the money-lenders do obtain bonds on false pretences ; ent^r in them 
sums larger than agreed upon ; deduct extortionate premiums ; give 
no receipts for payments and then deny them ; credit produce at 
fraudulent prices ; retain liquidated bonds and sue upon them ; use 
threats and warrants of imprisonments to extort fresh bonds for sums 
not advanced ; charge interest unstipulated for, over calculated — or 
in contravention of Hindu Law, and commit a score of other 

rogueries — these are facts proved by evidence overwhelming 

Hence arises the question whether, <the Courts 

should be obliged to enter into tbe merits of every money-claim, 
whether secured by bond or not, and should award only such sums, 
whether for principal or interest, as they deemed just, and should in 
no case give compound interest, or a larger amount of interest than 
the principal sum/ 

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^6 Honourable Mr. Hope's Opening Speech. 

The answer in the affirmative has been maintained, in Tarioac 
quarters of not inconsiderable authority, to be in acoordanoe with 

Bound general ptinciples of equity. •• Upon this subject not 

only opinion but precedents are forthcoming. Of the manner in whicb 
our Government) a few years ago, deemed it necessary to protect the 
raiyat, we have a striking instance in a clause (still unrepealed*) of 
the Bombay Regulation Y of 1827. It runs thus : — 

< Clause 2. — And in the case of a cultivator of the soil sued upon a 
written acknowledgement executed at a place which was not at the time of 
such execution under British jarisdiction, if the circumstanc«*B are such as to 
convince the Court that the creditor might reasonably be expected to poMeea 
other proof of the amount besides such written acknowledgment (the con- 
sideration received for the same being contested), then the said writing shall 
not be held conclusiye as to the amount, whether the defendant prove a 
deficiency in the consideration or not, but the Court shall pass a decree for 
only such amount as the claiaaant may otherwise proye to be due.' 

The law which preceded it, Begulation 1 of 1823, was even 
more explicit : 

< Section 36. — Whenever a cultivator of the soil is sued upon an 
acknowledgment in writing executed by him before the territory where it 
was executed came into the possession of the British Government, it shall 
be competent for him to plead that he did not recdve a full consideratioa for 
the same, whereupon the plaintiff shall be required to prove his debt in the 
same manner as if no acknowledgment had been executed ; and such sum 
only as in the circumstances of the case is just and equitable shall be allowed 
in the decree,' 

What the Bombay Government of Sir Bichard Temple have 
from the first substantially advocated, and what we really need, is 
something approaching to a restoration of this early law, together 
with power to cut down unreasonable interest. The Court should 
set itself to do substantial justice in every case which came before it 
instead of being satisfied with the letter of a bond or the hare 
assertions of either party, and it should of its own motion make such 

inquiry as it found necessary to this end There appears no 

reason to fear that such an exercise of its discretion by the Court 
would be either unfair to the creditor or demoralizing to the debtor. 

Where the rate of interest is regulated by the ordinary 

laws of supply and demand, interference is indefensible. But where 

♦ The P. A. R. Act repeals it. 

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HofiovralMe Mr. Hope's Openii^ Speeth* 77 

•*• ••»•«••#• ^ the oonditions depend more upon the degree of simplicity 
in the borrower and of rapaoity in the lender than on anything 

else,' no Bucb respeot need be paid to them ••••• It may be 

pointed out that Lord Granbrook •••• appears to look with 

approval on ^ es^tending the powers of Judges to modify the contracts 
entered into between man and man.' In accordance with this view, 
the first four sections of Chapter III have been framed, and will 
apply to all determination of the debts of agriculturists which may 
take place under the Act The hbtory and merits of disputed or 
doubtful cases will be enquired into, and an account will be taken in 
a certain way if the Court considers the agreement not fair and 

equitable Regarding this safe-guard and those of registration 

and accounts already explained, I should perhaps observe that any 
ingenious person can imagine methods by which debtor and 
creditor in collusion may evade them. But the same may be said of 
many other most beneficial enactments. We can only help those 
who will help themselves. 

A second important question affecting the determination of 
the amount of the debtor's liability is that of the period of limitation. 
The old law of Bombay (Regulation V of 1827, sections 3 and 4) 
fixed twelve years in the case of debts supported by a bond, and six 
years in the case of debts not so supported, as the period within which 
Civil suits for recovery must be brought respectively. By Act XIV 
of 1859 these periods were reduced to six and three years respectively, 
with the further restriction that a debt supported by written contract 
vras to come under the three years' period, unless it was ragistered. 
This is the present law. Acts IX of 1871 and XV of 1877 having 
made no material change. There is an almost universal consensus 
of opinion that, as the Commission say, ^ the reduction in the periods 
of limitation has been the cause of considerable hardship to the 
debtor,' Under the old law, the debtor was rarely sued or called 
upon to renew the bond till near the expiration of twelve years, and 
then he was, at most, sued under the provision of Aafti'dwpat iox 
twice the principal sum lent. But under the law since 1859, the 
creditor is forced within every thiee years either to sue the debtor, or 
to obtain from him a fresh bond for principal and any accumulated 
interest. In practice, he does so nearly every two years, in order to 
make sure of not missing the period throngh any accident or defaults 



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7S Hoftourahle Mr» Hope*ii Opeoii^ SpeecIL 

...••• The debtor Ihiis suffers the oost of writiog and stamping 

a new bond, is oharged oompoond interest instead of simple, often 
has to bear the expenses of a suit, and, finally, is Aneqoentl j obliged 
abo to sabmit to a large nominal increase of the prindpal, as the 
prioe of the creditor's forbearing to sell him entirely up, or to have 

him arrested and imprisoned. •• The only plea which has, as 

far as I am aware, been advanoed in favour of the three years' period 
is that it obliges the making np of aooonnts at short intervals, thus 
enabling the raijat to know how he stands, and preyentiog his being 
deeply involved without his knowledge. This objection had, nn- 
donbtedly, very considerable weight at the time it was made ••••••••• 

Bat the aspect of the qaestion seems to be changed by the provisions 
in Chapter IX of the Bill regarding receipts and statements of 
account. Taken in connection with s. 17, which enables any 
agriculturist to sue for an account, and to get a declaration of the 
amount really due to him under all the new and searching 
provisions of the Act, it would appear that the object of short accounts 
will now be attained, and perhaps more efficiently than it ever conld 
have been by the indirect expedient of a limitation-law. 

I now proceed to the second head— the mode and extent of 
eoforcement of equitably determined liability. In the eii^ecution of a 
decree by sale of moveables, the necessary wearing apparel of the 
judgment-debtor and his wife and children, hb implements of 
husbandry, and such cattle as the Court may deem necessary to 
enable him to earn his livelihood as an agriculturist, are now pro- 
tected by the amended Code of 1877. So it has not been thougl^ 
necessary to go further. As to execution agamst the person by- 
arrest and imprisonment, I rejoice to state that it is now considered 
expedient to abolish it altogether. Imprisonment will still be 
inflicted as a punishment for fraud detected on insolvency ; but that 
is a totally different thing Imprisonment was, at beet, a barba- 
rous device to meet the case of a debtor's concealing his property or 
refusing to give it up, •••...••• I trust that no hesitation will now be 
felt by the council in abolishing a system which has been proved to 
be grossly abused as an engine of extortion, and is in opposition to 
the legislation of the civilised world* 

The case of execution of a decree by sale of immoveaUe 
property remcunee &r notice* The problem of whether such sales 



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Honotirfla>ie Mr, Hope's Openifig Speech. ^ 

ahoi^kl be enferoed •••«,••*% is 6Biirdly ihecreatioii of British Bnle. 
Attbough tbe later Hinda Law permitted the sale of land < on proai 
of neoessity/ and Mdiamadan Law placed no bar to it whatever, iiie 
^OBeral feeliag of the ooantrj against ikli^iatioQ of imcestral lands, 
ooftpldd with <he trifling value of the right of ooonpanoy bxA &e 
pditioal oljjectioDs to eipropriation folt nnder ihd Native Government 
•I..,,.... appear to have oo^operated to prevent sales to any aotioe- 
ahle extent. But nnder oar jodtoial system, ^ihe sale of famd 

registered m die Collector's books is tibe mo^ ready way of 

e&&m)ii^ a judgment : it gives the least tronUe to botibi the creditor 
Ba»A the Court, and holds out every inducement to both to resort to 
diat mode of satisfying the decree in preference to any other, even in 
the most trifling oases.' The Code provides, ind<)ed, an alternative 
to sale of the natnre of an digit, or temporary alienation, by allow- 
ing the land to be placed under the management of the C!oliector for 
a term of years, not exceeding twenty, whenever there is reason to 
believe that the liability can be thereby cleared off. Practically ... 
sale has hitherto stood in the Code ui^ettered .»«...•,«... The position 
of the question ••••..... is generally admitted to be unsatisfactory... 
The alternatives of making land by law absolutely unsaleable f^ 
debt ; of enabling proprietors to make it so by voluntary trusts or 

entails; of limiting sale to any surplus unnecessary for the 

subsistence of the proprietor and his family ; of replacing sale in 
execution by usufructuary mortgages for tibe debtor's life or a maxi- 
mum term of years ; of restricting sales to specifically pledged land 
and of confining the power of sale ta the Chief Court of a District 
all these have found powerful & zealous advocates. 

The conclusion of this Council when passing flie Civil 

Procedure Code, .was that, though special measures might be 

admissible in particular localities, the plan of temporary alienation 
throngh the Collector for a term of years, whenever the property 
would be Ultimately saved thereby, being in accordance with the past 
course of Legislation regarding land in England and not inequitable, 

deserved a fair trial My object in this statement of tbe 

position of the land question ••• is to account for the absence in 

the Bill of any attempt at a final comprehensive settlement of it, 
and at the same time to show the connection and admissibiiify of IJse 
itwo limited measures which are proposed. S^ion 23 exempts the 



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80 Honourable Mn Hope's Opening: Speed^« 

land of agrionlturists from attachments and sale nnlees it lias been 

speoifically pledged I must confess to some misgiyiags 

as to how the exemption may work in practice. The money-lender 
may everywhere make the exeontion of a bond, laying on the land 
all his existiog unseonred advances, and indispensible condition of 
farther accommodation. At the same time, the exemption rests as to 
the past npon a perfectly intelligible and reasonable basis, while as to 
futore, the proposed village registration will atleast ensure that every 
raiyat when he pledges his land shall understand what he is doing 
and insolvency will open to him a loophole of escape when unreason- 
ably presses by an extortionate creditor, if he prefers tha alternative. 
The second measure also contained in section 23, is the grant of 
power to the Court, when passing a decree or subsequently to direct 
the Collector to pay off the amount by managing for not more than 
seven years any land not specifically pledged, after deducting a 
modicum sufficient for the support of the debtor and tlose of his 
family dependent on him. This course, which is only a new appli- 
cation of the principle of temporary alienation will add greatly to, 
the creditor's security, while diminishing the worry and expense 
to both himself and the debtor 

While thus contemplating the continued recovery of debts from 
moveables and land, however, policy no less than justice demands 
that the last refuge of an effective insolvency-law should be provided 
for the debtor. Such a law is really the bottom of the whole matter 

The need for it has been generally admitted for a long 

series of years, and has led to various legislative efforts and 

measures. Sir George Wingate so recently as December 

23rd, 1877, wrote thus :— " Of all the remedies proposed 

1 estimate the Insolvency Act as of the highest importance, and as 
likely to prove the most efficacious." Sir Bartle Frere in 1853, when 
Commissioner in Sindh, issued rules which worked well, but were 
superceded in 1861 by the Code of Civil Procedure. Sir William 
Frere, member of Council at Bombay, introduced into the Legislat- 
ive Council there in 1863 a Bill based on these rule and the 
Insolvent Act of the Presidency-Town (11 and 1 2 Vic, Chap. 21) 
but applicable to the whole Presidency. It was carefully matured 
in Select Committee, but was eventually withdrawn in 1867 for 
variety of reasons Sir James Stephen in 1870 introduced 

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Honourable Mr. Hope's Opening Speech. 81 

into the Legislative Oounoil of the Governor-general an Insolvency 
Bill applicable to all India. It was taken almost entirely from the 
English Bankruptcy Act of 1869; and on circulation to the Local 
Governments was generally held to be too complicated and unsuited 
to the circumstances of the Indian mufassal. In 1872 Mr. ( now 
the Hon'ble Justice ) West, Judge of the Sadr Court in Sindh, pro- 
posed a Bill with the essential features of the original Rules of 
that Province; but the matter was not proceeded with. The measure 
generally is also advocated in his well-known pamphlet * The land 
and the Law.' In 1872, also, the Fanjab made a meterial step in 
advance in the Land Act then passed. 

Upon the acknowledged harshness of the Indian law of in- 
solvency as it stood up to 1878 I need not enlarge. The new Code of 
that year, together with the amending Bill, which will, I hope, 
be passed at our ne^t sitting, have so far relaxed it, that a debtor 
arrested or imprisoned, whose property has been attached, may by 
application obtain a general inquiry into his affairs, a declaration 
of insolvency, and a release if in jail ( with immunity from sub- 
sequent arrest for the scheduled debts ) on bona fde surrender of 
all his property. A judgment-creditor also may apply for such 
declaration. A final discharge may also be granted by the Court 
at its discretion when the debts do not exceed Bs. 200, and is 
in any case acquired on payment of one-third of the Scheduled 
debts, if the assets do not produce more, or after the lapse of twelve 
years. The law is still, however, most defective. Application may not 
be made by a debtor until process has issued against him; arrest 
is retained; and imprisonment, though for a short period; all pro- 
perty except the moveables exempt from sale in execution must 
be surrendered; the debtor may be summarily imprisoned for 
a year, at the instance of any creditor, for concealment or 
bad faith, while no such penalty awaits the creditor; and in some 
cases the debtor's future earnings will be unreasonably burdened 
while in others the creditor will not get what might fairly bo 
recovered for him. Finally, the whole becomes a farce through 
the restriction that the Court may not grant a declaration unless 
it ' is satisfied ' that the debtor ^ has not, knowing himself to be 
unable to pay his debts in full, recklessly contracted debis,^ as if 

K 

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S2 Honourable Mr. Hope's Opetiing Speech. 

persons able to pay in full were the usnal customers of the 
money — lender 1 

The fact is that insolvency-law for the Indian mnfassal made an 

altogether false start In England insolrency has hitherto been 

treated more leniently than in India. Misfortune has here been made 
a crime, for which even life-long slavery might not atone. Surely, 
we must divest ourselves of much confusion of ideas. Whether a 
man is insolvent or not is a mere question of fact, quite unconnected 
with the inquiry how he came to be so. How much he can repay, 
without being made a useless or dangerous member of society is a 
mere matter of calculation, into which the moral aspects of his 

past conduct cannot enter To declare an agicnlturist insolvent 

when he is so; to set a reasonable time before him during which 
he shall work himself free and reserve the means therefor; and 
eventually to start him afresh with the lesson of experience, seem 
more sensible than to lock him up for a time while his family are 
starving, and then turn him adrift a beggar. To the creditor certainly 
the former course will be the more profitable, as also to society. 

In accordance with these principles, the Bill, in the first place 
provides ( section 20 ) for the numberless petty oases in which the 
means of the debtor, the claims against him and his partial or total 
inability to satisfy them come before the Court in the course of the 
suit or application for execution ..... Where the case is quite 
simple, the Court will therefore release the debtor from any balance 
which it is satisfied he cannot pay. When there are several creditors 
or other complications and the amount exceeds Rs. 50 it may at 
once direct the talting of insolvency-proceedings. Reviewing the 
Bill broadly, if I am asked what I think will probably be the 
effects of the measure... I must reply that... I think that it cannot 
but be most beneficial and that it will to a great extent meet the 
needs of the Dekkhan.. .Of course no one expects from it the abolition 
of indebtedness for all time." 



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DISCUSSION. 



«;•;•■ 



The Honourable Sayyad Ahmad Khan said\ — 

" Before the Bill goes to the Select Committee I wish ....to 

make a few observations with regard to the principles upon which 

the proposed legislation is based My Lord, no doubt a case 

has been made out for the applicalion of special measures of relief, 
and I fully admit that that relief should take the form of a law 
providing facilities for the release of debtors from debts which they 
can have no hope of discharging and which, while they remain 
subject to them, deprive them of the ordinary motives for exertion 
— the attainment of something more than bare livelihood. But 
My Lord, while it is desirable to give greater facilities to the ryots 

of the Deccan, care must be taken that the remedies are such as 

will not doter the people from having recourse to them, nor impair 
the credit which is ordinarily given to agriculturists, and without 
which they would be unable to meet the demand for revenue, or to 
sustain themselves from harvest to harvest. 

The requirements of the present Bill as to registration appear 
to me so onerous, that they will operate to deter persons from com- 
mitting their transactions to writing, liegistration affords a very 
doubtful proof of the payment of money. It is a common experience 
in this Country that money paid in the presence of the registration- 
officer is in part or wholly returned when the parties leave the 
presence of the registrar. It is rarely denied that a transaction has 
taken place; but if a dispute arises, it is as to the amount received. 

The portion of the Bill which relates to conciliation also deserves 
serious consideration. The Bill provides for the appointment of 
Conciliators, who having invited the parties to attend, are to use their 
best endeavours to induce them to agree to an amicable settlement. 
Now, the matter on which the parties are supposed to be at variance 
is not a mere dispute arising out of domestic or friendly relations, 
in which the impartiality of a stranger or the influence of a neighbour 
can be hopefully introJaceJ,* to parsaade the parties to make 
mutual concessions; and, therefore, I am not hopeful that this pro- 



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84 Discussion. 

vinon will be of praotioal use My Lord, in my judgment 

ihere is more reason to expeot that a creditor will abate his claims 
whoD the parties are brought face to face in a public Court of 
Justice than at a private sitting held by a Conciliator. 

My Lord, I now come to the provisions relating to the procedure 
in the civil Courts The first deviation from the ordinary pro- 
cedure which I find in the Bill is the compulsory enforcement of 
the attendance of the defendant. My Lord, if I am right in sup- 
posing that in the majority of cases the claim is just, if follows that 
in the majority of cases in which the defendant does not appear, 
it is because he knows the complaint is just, and does not desire 
to lose the labour of several days, possibly at a critical season for 
his crop, and incur the expense of going to and from, and attend* 
ing the Court. It would perhaps be su£Soient to require the 
Court to exercise the power, it already possesses of enforcing the 
attendance of the defendants only in those cases in which, on looking 
into the account, it sees reason to believe the claim is fraudulent or 
extortionate 

The provisions of the Bill which direct the Court to go into the 
history of the case from the commencement of the transactions, I 
think, also require modification. They may involve an inquiry impos- 
ing on a Court many days' labour, and affording it no certain con* 
elusions. It is scarcely reasonable to expect either of the parties to 
produce reliable evidence of petty money transactions extending 
over a number of years and commencing, it may be, a quarter of a 
century ago, especially seeing that the limitation-law has encouraged 
them to believe that such evidence would not be required of them, 
I, therefore, think that some definite and not too remote period 
should be prescribed for such enquires. So also a definite limit of 
time should be prescribed for re-opening statements and settlement 
of accounts. Some debts which will come before the Courts will be 
the result of transactions commenced and settled before the life-time 
of either party to the suit. The consequence of imposing on the 
Courts a duty they cannot possibly discharge would be to encourage 

them to evade it The provisions of the Bill tending to prevent 

the employment of Vakils appear to me to be of very doubtful ex- 
pediency. Having exercised judicial functions for many years I 



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Discussion. 85 

atn bonnd to say the Courts reoeive considerable assistanoe from 

Yakils I would prefer to see provision made for the employment 

of Government pleaders to appear on behalf of debtors in all oasess^ 
rather than discountenance the employment of pleaders at all. 

With regard to appeals, which are entirely prohibited in the Bill 
I admit that they entail evils, in that they prolong litigation and in- 
crease expense; but it seems to me better to experience these evils than 
the greater evil of imperfect justice. Cases triable by the Courts of 
Small Causes ordinarily present very simple issues, and do not call 
for the intervention of a Superior Court; but questions relating to 
land are far more complicated, and involve frequently questions on 
which the law is not well settled. I can see no reason why 
appeals should in these cases be refused in the Dekkhan when 
they are allowed elsewhere. Revision is, at the best, an imperfect 
substitute for the right of appeal. 

For similar reasons I considered the expediency of introducing 
special rules of limitation, proposed in the Bill, open to serious doubt. 
If it is desirable in the interest of the debtor to extend the period of 
limitation for the recovery of debts, the benefit should be given to 
agricultarists everywhere, and, indeed, to debtors of all classes. 

The provisions of the amended Code of Civil Procedure relating 
to insolvency will afford sensible relief — and relief that was needed — to 
agricultural and other debtors in all parts of the Country. The 
insolvency provisions in the present Bill go beyond the general law. 

I am not prepared to dissent from them on that account; I 

have only to observe that 1 can see no reason why a fraudulent 
insolvent in the Deccan should be exposed to less penalties than a 
fraudulent debtor elsewhere " 

[Honourable Mr. CockreH's speech is omitted. It is almost in 
the same terms as that of the above speaker.] 

His Honour the Lieutenant-Governor said: — 

It seemed to him that the Government in this Bill proposed to 

take very stringent measures to protect the ryot from the demands of 
the money lenders ; but the provisions of the Revenue — law for the 
realization of the Government demand had apparently been in no 
way altered. Every one knew the great stringency of those regu- 



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86 Discusaiofi. 

latioxis, and it seemed to him nmreasonable that, while we upheld 
them for the realization of oar own revenue, we should make saoh 
alterations in the ordinary law in regard to private contracts.* 

The Honourable Mr. Stokes said: — " I shall vote f(»r 

referring this Bill to a Select Committee, and I do not intend to 

osoddo it, so far as it carries out the express orders of the Secretary of 
State, that is to say, so far as it requires the Courts to enter into the 
merits of all money-claims by Sowkars against Deccan ryots, and 
forbids them to compel a ryot to pay a Sowkar compound interest or 
an amount of interest exceeding the principal sum lent ; so far as it 
provides that the principle of the Presidency-towns Insolvent Act 
(11 and 12 Vic, Chap. 21) shall be applied to the Deccan ryots; 
that their land shall not be sold in execution, unless specially pledged 

by a bond duly registered; that Courts of Conciliation shall 

be established. The remark with which 1 shall venture to 

trouble the Council have reference merely to the additions which the 
Bombay Government and the Honourable Mover have thought 
fit to make to the simple scheme recommended by the Secretary of 
State 

The first of these accretions to which I shall call your attention 

is s. 73 The efiEect of this section, coupled with section 3, 

will probably be the reverse of what is intended. It shuts out from 
appeal the decisions in almost all mortgage-suits. The object of 
doing so is, of course, to relieve indebted ryots from expense and 
prolonged litigation. But, first, I am informed by Mr. Justice West 
that in the Bombay Presidency, the Courts of first instance, in deal- 
ing with these suits, usually apply the harsh letter of the law in 
favour of the creditor. Relief is got from the higher Courts, in which 
modifications favourable to the ryot are much more frequent than 

• In the opinion of the His Honour the Lieutenant-Governor, the 
Dekkhan ryota to a great extent came into difficulties owing to the stringent 
method adopted by Government for the realization of revenue : " The 
peasant proprietor who had become indebted to a banker was still obliged 
to satisfy the Government demand in cash : to procure that cash he had 
again to resort to the money-lender and as the Government demand came 
upon him at the usual season of the year with regular recurrence he w&s 
obliged to resort again and again to the money idender in order to procure the 
cash." 



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Discussion. 8^ 

those in favoar of the Sowkar. And, secondly, the useful power which 
the Appellate Ck)urt now possesses under section 551 of the Code of 
Civil Procedure of confirming the decision of the Lower Court 
without sending or serving notice has in most cases rendered the cost 
of an appeal quite insignificant. The result of this part of the Bill 
will, therefore, be on the whole, to place the indebted ryot in a worse 
pecuniary position than he is in at present. As to cutting off all 
appeals in order to shorten litigation, the remedy will be worse than 

the disease. .*. The errors arising from corruption, incapacity 

laziness, precipitation, ignorance and love of arbitrary power, which 
are certain to be committed in these difficult land-suits, especially 
where the Judges are inexperienced and unaided by a Bar, will 
remain uncorrecled and cause hardship and discontent. The barring 

of an appeal in cases of the Small-Gause type ••• may be 

justified because, as a rule, those cases are simple and easy, and 
practically it is better, on the whole, for the community that in such 
cases the decision should be rapid, that it should be careful 
and correct. But mortgage-cases sometimes involve the investigation 
of difficult questions of title, priorities, mashalling securities, 
contribution, and rights of maintenance, and always the taking of 
complicated accounts. A Judge who does all this rapidly will simply 
scamp his work ; and the power of calling for and revising his 

imperfect records will be a very inadequate substitute for an 

appeal The power given by section 54 to the Special Judge 

to call for and examine the records of suits tried by Subordinate 
Judges is intended as a substitute for appeals. > But, first, the records 
of cases tried by second class Subordinate Judges at Bs. 150 a month 
will generally be defective; and the Bill (section 11) ex- 
pressly provides that in the bulk of cases (those of which the subject- 
matter does not exceed Rs. iO in amount or value) there need not ^ 
even a memorandum of the evidence. Under the Bill, therefore, the 
revising Judge will constantly have to exercise his jurisdiction on 
imperfect materials. Secondly, the revising Judge, no matter how 
carefully he is selected and how highly he Is paid, will be greatly 
inferior in learning, ability and experience to the Judges of the 
High Court, who now form the ultimate Court of appeal in the Presi- 
dency Thirdly, those records will be masses of ill- 

written documents in a Native character and language which, it is 



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88 Discussion. 

safe to say, no revising Jis^e will hare time or skill to decipher 
and translate. The business of revbion will, therefore, be plaoed' in 
the hands of the Shirastedars, who are notoriously open to the 
Sowkars' bribes ; and here, again, the Bill will work to the injury 
rather than the benefit of the ryot 

Chapter VIII, which requires all money-obligations executed 
by ryots to be written hj or before Village-Registrars, also 
seems to be a specimen of blundering benevolence. The chief result 
of this well-meant attempt to ensure the authenticity of documents 
will... be to discourage the use of written agreements aud to force oral 
contracts on persons who would otherwise have expressed themselves 

in writing • If theBcheme succeeds, it will also add greatly 

to the cost of all loans, su^h cost falling finally on the ryots, who 
cannot pay their revenue without occasionally borrowing. But 
wherever sowkars are concerned, the scheme is, I think, pretty sure 
to fail. The sowkars will give up mortgages and written instruments 
altogether. He will say to the ryot: ' I will lend you money at 
60 per cent, but, toind, if you do not repay me on the day fixed, 
I shall never lend to you again, nor will any of my brother sowkars.' 
The ryot will borrow on the terms proposed, and his last state will 
be worse than his first 

The provisions which I have hitherto noticed are in my opinion, 
unwise ; but those to which I shall now ask the attention of the 
Council are grossly unjust and (if I may use the expression in India) 
unconstitutional. Both sections 20 and 49 are retrospective in their 
operation. They relate to decrees passed before the proposed -4ct 
will come into force, and the former section at least seriously in- 
terferes with the vested rights ef the holders of such decrees... 
Remedial Statutes may be retrospective when they only go to con- 
firm rights already existing and add to the means of enforcing 
existing obligations. But sections like these, that disturb absolute 
vested rights against which there is no equity are founded on .un- 
constitutional principles and I, for one, will never be a party to 
pasdng them into law." 

[The Hon'blo Sir Alexander Arbuthnot and the Hon%]e Mr, Hivers 
Thompson and Hon'ble Sir John Strachey are not quoted.] 



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The Honourable Mr. Hope's Reply. 



7 he Honourable Mr. Hope said: — " I am glad to find 

tliat the main principles of the Bill, are ... accepted by tLis 

Council, and that my task is confined to replying upon what are, 
by comparison, matters of detail. 

In the first place, it was suggested by the Honourable the Law 
member that Chapter XX of the Civil Procedure Code, as amended 
in ijie Bill presented yesterday, would meet all the wants of our 
Dekkhan districts in respect of insolvency. But I must altogether 
demur to accepting it as suflScieat or suitable for that purpose. The 

objections to the law which I stated yesterday need not be 

repeated ; bat I may add to them that the provision for granting a 
discharge when an insolvent has paid one-third of the schednled debtS) 
"which has been imported from the Presidency Insolvency Act, seems 
to me false in principle, and likely to work unreasonably in practice, 
sometimes giving the creditor less than might be recovered for him 
and sometimes pressing harshly on the debtor. It has, moreover, been 
discarded from bankrnptcy legislation in England. I admit that 
by the Bill in question an advance has been made ; but an advance 

somewhat haphazard, tentative and restricted Finally, one 

thing which that amended chapter does not do is, singularly enough, 
the very thing which has been represented in the official correspondence, 
lind is indicated in the Secretary of State's despatch, as urgently 
required — namely, the allowing a debtor to apply for declaration of 
Insolvency, though no process has issued against him. 

Another remark of the Honourable Law member was that it 
would be sufficient, as to jurisdiction of the Courts, if Small-Cause- 
Court powers were conferred on all of tbem. But it seems to me 
that the only course open to us — consistent with common sense is 
that the Courts should have power to deal with all the sorts of cases 
in which ryots are ordinarily involved. That such cases must very 
frequently comprise mortgages, is clear from the fact ascertained by 
the commission .••••• that in the Villages in Poena tested by tbem 
L 

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90 The Honourable Mr. Hope's Reply. 

two-thirds of indebted ryots' land was mortgaged. To provide 
Courts professing to deal with ryots' difficulties but unable to touch, 
perhaps, one-half of the cases in which ryots are concerned, would be 
a half-measure, from which no good results could bo expected. 

The next question raised is that of appeals, for which the 
Honourable Law member considers the revision provided for by the 
Bill an inadequate substitute. Here I may point out that the Bill 
•....••• provides the safe-guard of a thorough supervision. It is a 

misapprehension to suppose that the supervising agency 'will 

be a special one. It will be merely a strengthening of the regular 
staff for the purpose of thoroughly carrying out section 9 of the 
Bombay Civil Courts Act (XIV of 1869) The officers ap- 
pointed will be members of the regular judicial department subodin- 
ate to the High Court : they will work the law subject to ils 
general control ; the Local Government will have no special juris- 
diction over them, and will be unable to make them a 

machine for carrying out the policy of the day. As to the merits of 
allowing appeals, compared with a system of re vision, I would point 
out that by the former from three to four per cent, of the cases tried 
are brought before the Courts, while by the latter the proportion is 
probably not less than from fifty to sixty per cent. Moreover, the 
cases which come up in appeal are often not those which deserve to 
come. ••# As an illustration of the persistency of monied liti- 
gants, I may mention that I have heard that Sir Barnes Peacock^ 
with reference to the petty appeals, about Rs. 5 sometimes, by which 
the High Court was troubled, remarked that it would be more 
econoniical for Government to pay the amount of the appeals than 
to keep up Judges and establishments to hear them. Again, the 
Honourable Law member has said, as an objection to revision, that 
the record called for will be inaccurate, incomplete and in the 
vernacular. As to inaccuracy and incompleteness, the objection, 
if good at all, applies just as much to appeals as to revision. As to 
the third point, I feel it my duty to repudiate, on behalf of the 
Bombay Civil Service, of which I have the honour to be a member, 
the suggestion that they are unable to deal with cases in the 
vernacular. 

in favour of the retention of appeals, much stress has been laid on 
the mortgage cases, which are said to be intricate, involving 



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The Honourable Mr. Hope's Reply. gx 

difficult questions of account. But this is a misapprehension. 
Mortgage cases in which ryuts are concorned are not necessarily 
intricate, and do not involve more accounts than simple money-cases. 
This can easily be seen by reference to the actual cases of ryots ..-4.. 
Mortgage-cases are usually only difficult if they happen to involve 
questions of priorities and the like, or there are several creditors." 

[The Honourable Sir Alexander Arbuthnot enquired whether there might 
be questions of title.] 

The Honourable Mr. Hope replied :—'' Under the Bombay 
Be venue system the name- of the owner of every field is entered in 
the Government books. It would only be in most rare instances 
that the man whose name appeared was not the real owner ; and so 
questions of title are not likely to give trouble. 

I may mention to the Council t.. that, as regards this 

question of appeals, contrasted with revision, I happen to have 
had a very considerable experience— if not actually in civil cases, 
still in criminal ones, which for this purpose come to the same thing. 
...... ..My experience was that all the serious abuses and irregulari- 
ties came to light in examination and revision: scarcely anything 
ever came out in appeal 

The Honourable Law-member has expressed his fears that 
section 46, about agreements before Conciliators, and also the 
registration provisions, may be defeated by collusion and fraud. As 

to agreements I would point out that the case is analogous to 

that of awards filed under section 5^5 of the Civil Procedure Code... 
As to both the agreements and the registration, 1 would repeat my 
observation of yesterday, that the same objection as to being open to 
fraud may be made to any other good laws. The Registration Act 

i»ay be easily defeated by one party to the Bill returning to 

the other at home the consideration which they have paid and 
received before the registrar. The stamp-laws are constantly evaded 
by the re-use of spoiled stamps, &o., and the coinage laws do not 
prevent the circulation of false money yet we do not think 
it necessary on this account to abolish registration, stamps and 
our coinage. The Bill will help those who help themselves : if any 
persons prefer collusive evasion of it, they will suffer accordingly, 
and rightly so. ,...•,.,," 

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92 Report of the Select Committee~( 28^9 ). 

Report of the Select Committee on the Bill introduced 
in 1819 for the relief of indebted agriculturists 

in certain parts of the Dekkhan. 
We, the undersigned members of the Select Committee, to 

vrhich the Bill for the relief of indebted agriculturists in oertaio 

parts of the Deocan was referred, have the honour to report that 

we have considered the Bill 

2. We have not been so fortunate as to agree among our- 
selves on all the points presented for our consideration, but we 
do not deem it necessary to refer in the body of this report to 
such differences of opinion as have arisen. The most convenient 
course, we think, will be to treat the conclusions of the majority 
as the conclusions of the committee, leaving individual members 
to record separate dissents upon such points as they think fit. 

We shall refer to such of the amendments made by us as 
seem to us to call for special notice in the crder of the sections 
of the Bill as introduced. 

3. Section 8, providing for the service of summons by patels, 
which was inserted on a suggestion made here at the time the 
Bill was prepared, has been struck out as it has not met with 
the approval of the Government of Bombay. 

4. Section 9, empowering the Courts, instead of hearing the 
case ex parte, to issue a warrant for the apprehension of a 
defendant who does not appear and requiring them to adopt 
this procedure as the general rule, has given rise to some difference 
of opinion. On the one hand, it has been urged that the habits 
which the ryots of the Decoan have fallen into of allowing suits 
instituted against them to be undefended, have contributed in no 
small degree to produce the evils which this Bill is intended to 
remedy. On the other hand, the obvious hardship of forcibly dragg- 
ing a man away from his home and bis cultivation, perhaps at a 
season when every day b of importance to him, merely with a 
view to compelling him to appear in a suit to which he has no 
defence, has been much dwelt on by Mr. Justice West, Mr. Naylor 
and others. 

After weighing the arguments on both sides, we have come to 
the conclusion that those which may be urged against the introduc- 

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Report ofthe^lcctComnxtttee— j(x879). 93 

tion of this novel and very stringent rul^ preponderate; and we are 
confirmed in this oonolasion when we remember that under seotion 
12 of the Bill the Court is bound to make investigation into the 
history of the case, even though it is not defended, and that, if it 
is necessary for the proper conduct of such investigation to have 
the defendant ia Coftrt, the Civil Procedure Code gives power to 
summon him as a witness.*^ 

5. In order to prevent the provisions of Chapter III of the 
Bill being evaded, as it has been pointed out to us they might be, 
by entering into contracts with the agriculturists of the four dis- 
tricts to which the Bill extends at places beyond the limits of those 
districts, we have introduced a section in the beginning of Chapter 
III, requiring suits against such agriculturists to be brought where 
the defendants reside. 

6. The next provisions of the Bill calling for notice ar^ those 
contained in sections 12 to 15, commonly described as the sections 
requiring the Court ** to go behind the bond, " and they are by far 
the most important we have had to consider. 

Section 12 is in the main merely indrodutory to those that 
follow. It provides that, when the amount of a claim is disputed, 
the Court shall inquire into the history and merits of the case, 
partly with a view to acertaining whether there is any defence to 
the suit on the ground of fraud, &o, and partly with a view to 
taking the account between the parties according to the rules laid 
down in the foUovving sectione; but that, when the account of the 
claim is admitted, the Court shall not be bound to institute such 
inquiry, unless it sees reason to doubt the truth of the admission. 

7- The Government of Bombay object to the latter portion 
of the rule. We have felb some doubt as to the precise grounds 
of their objection as set forth in paragraph 10 of their letter of the 
27th August; but we understand that their view is that it is 
necessary to institute the Inquiry in every case^ even though the 
defendant may admit the claim, and there may be no reason to 
doubt the truth of his admission. 

* The Legislative Council, however, added a paragraph to the effect that, 
fis a rule, the defendant should be examined, [ vide para 2 of s. 7. ] 



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94 Report of the Select Committee— ( 2879 }. 

We are not prepared to go quite this length. There must, it 
appears tons, be some cases in whioh it will be clear enough 
for all practical purposes tlat the admission of a defendant is 
true and reasonable — cases, for example, in which, though the 
defendant is an agriculturist within the meaning of the Bill, he is 
a man of some little education and as well able to keep an ac- 
count of hb transactions and understand his position as the plaintiff. 
In such cases, we think, we should be inflicting an uanecessary 
hardship on both parties and wasting the time of the Court by 
insisting on an inquiry which, even where both parties were agreed, 
would, if the Judge \Yere to be put in possession of the whole 
history of the case, often be lengthy and troublesome. ^We Have, 
however, introduced fin amendment which we believe will, in 
practice secure all th^it the Government of Bombay desire by pro- 
viding in section 12 that, in cases where the defendant admits the 
claim, the Court shall nevertheless inquire into the history of the 
case, unles?, for reasons to be recorded by it in writing, it believes 
that the admission is true and is made by the debtor with a fall 
knowledge of his legal rights as against the creditor. The result of 
this amendment will be that it will no longer be possible for an indo- 
lent Judge, as it would be under the Bill as introduced, to shirk the 
labour of the inquiry by saying that he sees no reason to doubt 
the truth of the admission. The inquiry must be made, unless 
the Judge is prepared to give some special reason for accepting 
the admission— some such reason, e. y., as might be given in a 
case of the description just referred to. 

8. Section 13, which lays down the mode in which, after the 
inquiry prescribed by section 12 has been made, the account 
between the parties should be taken, has been recast in order to 
bring it as nearly as possible into accordance with the views 
of the Government of Bombay. 

As it originally 'stood, it provided that, if the court found that 
there was any agreement between the parties as to the mode of 
taking the account, and considered such agreement fair and equitable, 
tlie account should be taken in accordance with such agreement 
but that otherwise the account should be taken according to certain 
rules the principal of which were; — 



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Report 6f the Select Comniitte^fe —( 1879 )• 95 

First, that compound iateresfc should not be allowed in any 
shape or under any ciroumstanoes; 

Secondly, that all profits and advantages received by the 
plaintiff in connection with the transaction should be brought to 
credit at a value to be determined by the Court; aud 

I%irdhj, that the Hindu rule of dam-dupat^ by which the 
sum recovered on account of interest shall not exceed the sum 
reoorved on the satne occasion on account of principal, should bo 
observed in all cases without reference to the relation of parties* 

8. Government of Bombay desire to iave the two first of 
these rules applied absolutely and in all cases without any regard 
to the agreement between the parties, even where such agreement 
may, under the circumstances, be a fair and equitable one. 

The third rule they desire to have similarly applied, but 
with a modification in favour of the debtor of so extensive a 
nature as to make it in form and in substance a completely new rule. 

In short, the Bill as it at present stands, goes far in the 
direction of setting aside contracts which under the law hitherto 
in force have been held good. The Government of Bombay desire 
to make it go much further, 

10. The question is accordingly one of those of degree, on 
which opinions will necessarily differ. 

On the one side, it is urged that it is necessary, on political 
grounds, to adopt strong unusual measures in favour of the ryots 
in order to prevent irritation and discontent. 

On the other hand, it is urged that in so far as the question 
can be considered to have assumed a political aspect, we must be 
careful lest by going so far in our eftorfe to allay the discontent 
of one class we excite the disaffection of the other. 

11. Turning from the political to the e«onomioal aspect 
of the question, we have, on the one hand, the very obvious argu- 
ments as to the desirability of providing for the ryots some means 
of escape from their present thraldom and of giving them a fresh 
start on something like a solvent footing. On the other, we have 



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96 Report of the Select Committe^^C XS79 U 

been much ptessed with the argament that by going too far in 
subverting contracts we may destroy the credit of the royts and thus 
in the long rnn both aggravate their pecninary difBcnIties and plaoe 
the Govemment/evenne in jeopardy. 

12. Amid these conflicting considerations, we have, we need 
hardly say, desired to be guided, as far as possible, by the view of 
the Government of Bombay, There is indeed much in the Bill 
as now settled by us which, if it were not for the deference we 
feel for the strongly expressed opinion of that Government, we 
should propose to alter. But we cannot altogether devolve upon 
others, whatever our respect for their views may be, the doty 
of forming an opinion on the important questions submitted to us. 

Looking at the matter in this way, and having given it oar 
most anxious consideration, we find ourselves in a position to 
recommend that the views of the Government of Bombay be adopted 
fully in regard to one of the three rules above referred to, and 
partially in regard to the other two* 

13. To begin with the rule as to crediting profits irrespective 
of any agreement which may bave been made regarding them 
we think that that rule may, without any danger of injustice, be 
made, as the Government of Bombay wish it to be, applicable to 
all cases. 

it is true that, in the oaSe of a usufructuary mortgage, it sets 
aside agreements which have hitherto not only been enforced wben 
expressly entered into by the parties, but which the law in Bombay 
(Bombay Regulation V,^f 1827, section 15) presumes, ia the 
absence of any express agreement, to be implied : we mean agree- 
ments to the effect that the profits of the mortgaged property shall 
be taken by the mortgage^ without account in lieu of interest. 
But such agreements, wben made between the parties to a mortgage 
whether expressly or by tacit reference to the Begulation just 
mentioned, usually proceed on the calculation that the profits of the 
property will be equivalent to reasonable interest on the loan ; and 
there can accordingly be no great hardship in providing that the 
Approximate estimate of the profits made by the parties shall be set 
aside and an actual account taken, reasonable interest being at the 
same time allowed to the mortgagee. 



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Report of the Select Committee-( 1879). ^/^ 

14. In regard to the matter of compound interest, we arc 
tinable to adopt in their entirety the proposals of the Government of 
Bombay. We have no doubt that, in a very large proportion of the 
oases that will come before the Courts under this Bill, it will be 
found that the debt has been unduly swollen by frequent rests and 
oonsolidations of interest with principal ; but it seems to us that 
there must be some cases in which a consolidation of interest with 
principal, or perhaps a novation, as a lawyer would term it, of the 
entire transactions, has taken place under such circumstances that 
the refusal to recognise it would work a gross injustice. This being 
so, we deem it impossible to lay down any absolutely hard-and- 
fast rule on the point ; but in order to bring the Bill in this par* 
ticular, as nearly as we can venture to do, into conformity with the 
views of the Government of Bombfiy, we have, following a course 
similar to that which we have adopted in regard to section 1?, 
provided that compound interest shall be disallowed, unless the Court, 
for reasons to he recorded by it in writing^ is of opinion that it is 
fair and equitable to allow it. We may add that we feel confident 
that the law as thus amended will fully secure the object which we 
understand the Government of Bombay to have in view. 

15. As regards the Hindu rule of Dam-dupcU^ it has, at the 
desire of the Government of Bombay, been extended to the whole 
agriculturist-population of the four districts, without reference to 
creed or sect. We now propose, in fuither compliance with the 
view of that Government, to make it an absolute rule overriding all 
contracts between the parties ; but it is in . our opinion quite im« 
possible to adopt the extensive modification of the rule, or, speaking 
more properly, the completely new rule which is nQw proposed. 
Ttiat new rule, which would provide that the total amount claimable 
from first to last on account of interest shall in no case exceed the 
principal, has not, like the rule of dam-dupat^ the authority of Native 
law or ancient custom to support it. It rests on no principle that 
we have been able to discern ; and from the tenth paragraph of a 
letter from the Government of Bombay^ No. 4579, dated 5th Sep^ 
tember 1878, which hasieen laid before us by the Secretary, it 
would appear that it was introduced merely in order to provide an 
additional mode of reducing the claims of Sowkars* We would 
further observe that no attempt has been made, as far 9& appears, tg 

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•98 Report of the Select Committee— (1879'). 

estimate its effeot npon es^isting claims; but we gather from the 
paper before ns and the report of the Decoan Biots Commission that 
in the oase of a very large proportion of those claims, interest in 
excess of principal has already been paid ; and whererer this is so, 
the result of the rnle would be that, when the claim had been cat 
down in the various mode& required by the very stringent provisions 
of section 13, it would be necessary again to reduce it by one-half. 
It appears to ns impossible to enact arbitrarily a new rule of this 
description* 

16. We have next to refer to a section which appeared in the 
drafts submitted by the Government of Bombay in January 1878 
and in April last, but which was omitted from the Bill as prepared 
here, and for the re-introduction of which the Bombay Government 
now strongly press. 

The section in question, as it appeared in the Bill submitted in 
January 1878, provided that where the nature or extent of the 
transactions between the parties was doubtful, the Court should 
determine the " amount of money lent upon an equitable estimate 
with reference " to such considerations as the means and position of 
the parties, the state of the borrower's credit at the time, the occasion 
on which the money was advanced, the needs of tiie borrowers, &o. 
Mr. Naylor, the Legal Remembrancer to the Government of 
Bombay, in the able paper submitted by him, seems still to press for 
the introduction of the section in this form. He considers it to be 
one of the two essential points of the proposed measure that the 
Courts should be empowered, when " the evidence is doubtful, to 
determine the amount payable upon equitable considerations^'^ 

Now, it is common enough to speak of adjusting rights on 
equitable grounds ; but we are altogoiher at a loss to understand 
what is meant by deciding a pure question of fact " upon an equitable 
estimate " or •* upon equitable considerations." 

We apprehend, however, that if we adopted die section in this 
its original form, as Mr* Naylor would apparently have us do, it 
Would probably be construed by the Lower Courts as an instruction 
io them in d^^fanlt of satisfactory proof to make a guess at the amount 
of the loan, and in making such guess to have a special regard to 
circumstances which would^ as a rule, tell in favour of the debtor. 



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Report of the Select Gommittee— (1879 ). 9^ 

17. lu the Bill submitted in April last, this section appeared 
in a new shape ,]^namely, as a provision simply to the effect that the 
circumstances above referred to, namely, the means of the parties, &c., 
should upon any question arising as to the extent of a transaction, 
be relevant facts ; and it is apparently in this sha[)e that the Govern- 
ment of Bombay now advocate its re-introduction. In pressing us 
to re-introduce it, however, they are apparently influenced by what 
appears to us to be a misapprehension as to the existing state of 
the law. They speak of it as " a relaxation of the rigour of the 
existing practice as to the admission of evidence." This, as it 
appears to us, it would not be. We are clearly of opinion that the 
facts referred to, though their weight in evidence would, as a rule, 
be small, would be relevant facts within the meaning of the Evidence 
Act, and that accordingly the proposed section would be simply 
nugatory, that Is to say, without any legal operation. 

We are by no means sure, however, that if it became law it 
would not indirectly work mischief. We are inclined to think that 
an enactment expressly rec|uiring the facts referred to to be treated a^ 
relevant facts would lead the Courts to attach an artificial weight to 
them over and above the weight which naturally belongs to them ; 
and we are strengthened in this opinion when we see the extraordin- 
ary importance which the Government of Bombay and some of the 
local authorities appear to attach to the proposed section, an Im- 
portance which could scarcely be attributed to it if the facts to which 
it refers were to be estimated at their natural value. 

The great anxiety shown by the Government of Bombay for the 
re-introduction of this . section must be our execuse for stating at 
such length our reasons for rejecting it. 

18. Ss. 16 and 24, which go to relieve an heir from a portion 
of his ancestor's debt, though he may have luherlted from that 
ancestor property sufficient to pay that debt, have been struck out.* 

The Government of Bombay do not appear to attach much 
importance to them, the Judges of the High Oourt have objected to 
them, and it is hard to see why, when the ancestor's debt was unddr 
theau^ple powei-s contained in sections 12 to 15 of the Bill been 
fully inquired into and reduced to its just limits, the heir should not 

» See t|ie foot-note on the next pagQ. 

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100 Report of the Select Committee— ( 1879 )• 

« 

be bound to pay it to the extent of the property he has inherited. 
The obligation binding him to do so is, as observed by the Honour- 
able Sayyad Ahmad in his speech ^^hen the Bill was introduced, a 
matter of natural equity common to the English, Hindu and 
Mahammadan legal systems. Moreover, it is an obligation with 
the force of which the people of this country are perhaps more 
strongly impressed than those ot any other ooantry, and the sense of 
which, as observed in a letter from the Government of Bombay of 
the 6t;h April 1877, is one of the best traits in their character.* 

19. Section 30 of the Bill, which empowers the Insolvency 
Court, instead of selling the moveable property of an insolvent, to 
insist on one of his creditors accepting it at a valuation in payment 
or part-payment of his claim, has given rise to much discussionv 
On the one hand, the danger of property l)eing sold at a great loss 
when put np to public auction has been mnch dwelt upon ; on the 
other, the hardship of forcing upon a creditor an article for which 
he may have no use for himself, and which ex-hypothesi it is not easy 
to sell, has been urged especially by Mr. Justice West. On the 
whole, it appears to us that the arguments against this section 
preponderate over those in its favour, and we have accordingly 
struck it ont. 

20. We have, in accordance with the view of the Government 
of Bombay, removed the restriction in section 86 of the Bill under 

* Section 16 as proposed was : — 

If the debt, or any portion thereof, was not contracted by the person 
from whom the creditor weke to obtain recovery, but by such person's father 
or other ancestor, the said person shall be caUed upon to state whether he is 
willing' to accept the full reeponsibility for such debt or for such portion 
thereof; 

and, if he accepts such responsibility, shall be held liable for the full 
amount payable en account pf such debt, or of such portion thereof subject to 
the other provisions of this Act, or of any law for the time being in force 
relating to ancestral debts ; 

but if he declines to accept such responsibility, he shall not be held 
liable for more than the principal amount of such debt, or of such portion 
thereof, with interest up to the date of the death of the person who incurred 
such debt, or of such portion thereof, if such person was related to him in the 
first degree, and otherwise only for the principal amount of suoh debt or of 
such portion thereof. 

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Report of the Select Committee— ( 1879). j^j 

which no one hut a Patel could be appointed to the office of village- 
munsif. Under the section as now amended any person possessing 
local influence may be appointed. 

21. Section 35, limiting the power of the Subordinate Judges 
to commit fraudulent insolvents to jail under s, 359 of the Code of 
Civil Procedure, has been omitted, and a section providing for an 
appeal from the orders of Subordinate Judges in such cases substi- 
tuted for it, at the instance of the Government of Bombay. 

22. We have deemed it necessary to guard against the dangers 
averted to by the Honourable Sayyad Ahmad in his speech, by the 
introduction of words in section 40, excluding revenue and police 
officers from the office of Conciliators.* 

We have further, in order to furnish a simple and inoffensive 
means of getting rid of a Conciliator who proves unfit for the 
position, added a clause in the same section providing that Conciliators 
shall vacate their office at the end of three years, but shall be 
ro eligible. 

23. In sections 49 we have, adopting the view of the High 
Court and the Legal Remembrancer, struck out the words which 
made the Conciliation system applicable to proceedings in execution 
of decrees passed before the new law comes into force as well as to 
suits. 

We find it difficult to understand why this system should be 
applied to decrees passed before this Bill becomes law and not to 
those passed after, unless upon the assumption that the decrees 
already passed were unfair to the judgment-debtors, and thai some 
pressuie should be brought to bear to induce the holders of such 
decrees to forego some portion of what they are entitled to claim 
under them. We can give no countenance to any such assumption. 
The (.-ourts will no doubt, if this Bill becomes law, proceed in future 
oh principles more favourable to the debtor than those on which 



* The appropridte section in the Act regarding this point is s. 38. As 
ori«jinally drafted the section empowered the Local Government to appoint 
any person to be a Conciliator. The Select Committee recommended the 
ekcluBion of revenue and police officers from the office of Conciliators. The 
Lf gislatiye Council, however, only excluded the Police Officera, 

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102 Report of jtke Select Committee— { 1879 )• 

ibey have been hitherto prooeediog ; but when a man has obtained 
a decree from oar Courts in accordanoe with the law for the time 
being in force, we cannot think it right to enact that his decree 
should be placed on the same footing as an unproved claim. If the 
judgment-debtor requires time to pay, the Bill gives the fullest power 
to the Court to allow time. If he is altogether unable to pay, tlie 
Insolvency Courts are open to him ; but wo cannot admit that under 
any circumstances the rights of the decree-holder under his decree 
should be brought in question.* 

24« The question whether appeals should be allowed in any 
cases tried under Chapter II of the Bill or whether we should trust 
entirely to the powers of Superintendence and revision conferred by 
Chapter YII has given rise to much discussion. It is not so im- 
portant as might at first sight appear, inasmuch as there can be 
little doubt thati if the right of appeal wei^e widiheld, petitions for 
revision would take the place of petitions of appeal, and then the 
chief difference would be that an application for revision, not being, 

* The section was restored to its original condition and the recommenda- 
tion of the Select Committee here made was disapproved by the Legislative 
Council. (5 voting in favour of the Select Committee and 9 against it.) 
The Select Committee based its recommendation on the following grounds ; — 

(1) that every existing deoree must be assumed to just ; 

(2) that uo influence, however mild, can rightly be applied to induce 
a decree-holder to forego any part of his legal rights under the 
decree ; 

(8) that, if the debtor cannot pay, he may resort to the Insolvency 
Court. 

But the recommendation was opposed for the following reasons :— 
(1> that it is wrong to assume that every existing decree is just ; 

(2) that friendly mediation may rightly be used to obtain an early 
settlement of old decrees, which, owing to fraud in execution, 
may have really been satisfied over and over again ; 

(3) that the Select Committee laboured under complete misappre- 
hensions when they belevied that the Act contemplated that << .a 
decree should be placed on the same footing as an unproved 
cUim,'' What is really intended is simple mediation and nothing 
beyond that. 



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Report of tjie Select Committee— ( 1879 ). 103 

like the presentation of an appeal, a matter ef right, might bo more 
summarily dealt with by the Superior Court. Having considered 
all th^t has been said on both sides, we have coiiie to the conclusion 
that in mortgage cases, in which questions of difficulty and im- 
portance are likely to arise, an appeal should be allowed, and we 
have amended the Bill accordingly.* 

25. If an appeal is to be allowed in these ea^, which forui 
a very large class, and the m'osfe important class, of cases to be 
heard under the Bill, we think that the Special Judge, who was to 
have been appointed to strengthen and su{)erintend the Staff of 
officers employed in the work of revision, will no longer be required 
and we have accordingly omitted all reference to him, and tranferred 
his duties to the District Judge. 

26. We have omitted section 69, which empowered the 
Subordinate Judge to refuse to allow any costs between parties, on 
account of pleader's fees ; as it has been argued, and we think with 
great force, that owing to the smallness of the fees in such cases 
it would rarely effect the object desired, namely that of deterring 
parties from employing pleaders ; and further that, in so far as it 
had any effect, it would tend to render the pleaders subservient to 
the Judges. 

27. We have been urged to introduce in the place of this 
section the provision of the draft Bill submitted by the Government 
of Bombay, which would have, as a rnle^ excuded pleaders in thdae 
cases altogether ; but we deem it undesirable to do so. 

28. The only other amendment made by us which calls for 
special notice in &As report, is the insertion of s. 71 of the Bill as 
now amended, requiring all mortgages below lis. 100 in value 
executed before the Bill becomes law to be registered within one 
year. This section has been inserted at the instance of the Govern- 
ment of Bombay and of some of the other authorities consulted, 
and it appears to us to be necessary in order to guard against docu- 
ments being forged with dates prior to the passing of the Bill with 
a view to evading the provisions of the Chapter on Village* 
Registration. 

* This amendmeDt was not accepted in the Legislative OouDcil. 

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Amending Act XXlll of iS8l. 
Statement of Objects and Reasons. 



The Bombay GJovernraenfc have brought to notice difficulties 
ia the working of the Dekkhan Agricultnrkts' Relief Act, for the 
removal of which it appears necessary to make certain amendments 
in that Act, and to carry out those amendments this Bill has been 
prepared. 

The fii'st amendment provided for is in section 2 of the Act. 
That section enacts in effect that every agriculturist shall be deemed 
for the purpose of the Act to reside where he works as such. 
This rule is found to give rise to difficulties in the case of agri- 
culturists holding land in more than one place, and it is accordingly 
proposed to repeal it altogether. 

2* The first portion of section 19 of the Act confers on the 
Courts power to discharge an insolvent who owes a sum of less 
than fifty rupees under a decree, and against whom there is no 
other claim; but it makes no provision for the case oi an insolvent 
judgment-debtor, against whom there are other claims, but of 
amounts so trifling that, taken with the amount of the decree^ they 
do not amount to fifty rupees. There appears to be no reason 
why this latter case should not be treated on the same footing as 
the former, the insolvency chapter of the Bill being, equally 
in-applioable to both; and the Bill accordingly amends the Act so 
as to give power to discharge the judgment-debtor from the balance 
duo nnder the decree in either case. 

3. Section 38 of the Act prohibits the appointment of** an 
officer of police " as a conciliator. A doubt has arisen as to whether 
a police patel is to be deemed an officer of police within the meaning 
of this provision, and at the instance of the Local Government an 
explanation has been added to the section to show that he is not 

4. The amendment proposed in section 48 of the Act merely 
corrects an oversight In drafting. 



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Statement of Objects and Reasons--(x882). 105 

5. The addition which it is proposed to make to section 56 
of the Act, is intended to dispense with the necessity of having 
an instrument executed before the Village-Registrar, merely because 
a party execntiug it aa a surety is an agriculturist. 

The changes made in sections 57 and 58 are intended merely 
to make the meaning clearer. 

6. The new section which it is proposed to substitute for 
sectionTl of the Bill, differs materially from the original one, 
though the object of both is the same, viz.^ to prevent the fabri- 
cation of mortgage deeds purporting to have been executed before 
the Act came into force. 

The section as it now stands in the Act aims at effecting this 
object by requiring all existing mortgage — deeds to be registered 
before a certain date under the Indian Begistration Act; but it has 
found that the practical difficulties in the way of such registration 
are so great that it is necessary to abandon this procedure and sub- 
stitute for it the simple expedient proposed by the Bill of requiring 
such deeds to be merely produced before and marked by the Village 
Registrar before a certain date. 

7. Section 72 of the Act, which prescribes period of limit- 
ation'longer than the ordinary periods for certain suits against agri- 
culturists, applies in every case in which the defendant is an agri- 
culturist at the time the suit is instituted. This would in some 
cases, where the defendant had become an agriculturist shortly be- 
fore the institution of the suit, lead to anomalous results. 

To prevent this, the Bill amends the section, so that it will 
apply only when the defendant was an agriculturist at the time the 
cause of action arose* 

8. Difficulties having arisen as to the construction of the 
definition of " agriculturist,*' section 75 of the Act, which gives 
the Local Government a power to make rules, has been recast so as 
to adniit of rules being made among other matters, to define more 
precisely what classes of persons shall be deemed to be agriculturists 
for the purpose of the Act. 

9. Section 12 of the Bill is intended to put mottgage-deeds 
executed before the Act came into force, and registered under a 

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106 Speech of the Honourable Mr. Gibbs. 

dysian of questionable legality establiehed by the Looal Government 
on the same footing as if they had been njarked by the Registrar 
under the new section 71. 



Extract from Proceedings in Governor-GeneraV s 
Legislative Council Vol. XX^ p. 81. 

" The Honourable Mr. Gibbs moved for leave to introduce a 
Bill to amend the Dekkhan Agrioulturists' Relief Act, 1879 and for 

other purposes. He said * the amendments were not of very 

great importance, with the exception of one, relating to the regist- 
ration of documents. Some practical difl&culty had arisen on the 
point and it had heen found that it would be quite sufficient, instead 
of the documents in question being registered and a copy kept in 
full, if. they were simply ear-marked to prevent any falsification 
after a certain date.'. .....••../ 



Speech of the Honourable Mr. Gibbs^ 

Made while presenting the report oj the Select 
Committee on the Bill of 1881" Honourable Mr. Gibbs 
said: — 

The Bill had been sent to Bombay and had been carefully con- 
sidered by that Government and by the Special Judge, Dr. Pollen, 
•••••••.. and they had proposed certain amendments and alterations 

in the Bill. Those alterations had been fully considered by the Select 
Committee and the Bill had been altered in accordance with what 
was considered to be the wishes of the Bombay Government. The 
first alteration made was the insertion of a new definition of 
* agriculturist.* The definition originally given was considered not 
to have worked well, or to have carried out what was the intention 
of the proposers of the Bill ; it was also objected to by the Bombay 
Government. It had been suggested to leave that Government to 



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speech of the Honourable Mr. Gibbs. 107 

deoide as io who should be considered an agrioultarist, but takiug 
into consideration the difficulties this would give rise to, the Select 
Committee had introduced into the Bill a new definition of < agri- 
cultarist ' and had added two explanations which would make that 
definition clear. They had also added in one of the sections the 
words " not being merely a surety for the principal debtor," chiefly 
owing to a decision given by the High Court of Bombay in i»hich 
the wording of the Act as originally framed was found to have had 

anything but a beneficial effect. Other alterations were made 

to which he need hardly allude. There was one made at the sugg« 
estioQ of the Bombay Government, namely, to give to the District 
Judge power to transfer applications pending before one Conciliator 
to the file of another Conciliator. The reason for this was thai 
he found that these Conciliators were gentlemen who had a great deal 
of labour thrust upon them without any pay, and who in consequence 
found it necessary for their bodily or spiritual health to take a 
pilgrimage to Benares or elsewhere, leaving tbeir work behind them« 
Another and an important alteration had been made at the request 
of Dr. Pollen, the Special Judge, and that was in the provision of 
the original Act» which prohibited the legal practitioners of any kind 
from appearing io suits before a Village-Munsif or Subordinate 
Judge. We had considered the question carefully, and had come to 
the conclusion that it would be advisable to allow pleaders to appear 
before the Subordinate Judge in cases that came before them 

The only other matter he need mention was one to which he 
had already referred at a previous meeting of the Council, about 

allowing Police Patels to act as Conciliators ....••• The Police 

Patel in the Bombay Presidency was not the ordinary policeman in 
blue coat and metal buttons ; but was very often the most respect- 
able man in the village ....and often the most influential 

person there. ......•••... 



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Amending— Act XXII of 1882. 
Statement of Objects and Reasons^lt 

The Dekkhan Agrionlinrists' Relief Act 1879, was, as stated at 
the time it was passed, essentially an experimental measure, and 
owing in part to this, and in part to certain diffionldes attending its 
passage throagb the Council, it was found, after some experience of 
its working, to be defective in some particulars, and it was accord- 
ingly amended by Act XXIII of 1881. 

The additional experience gained since the passing of the last* 
mentioned Act shows that further amendments, chiefly in matters 
of detail, are required, and the present Bill has been framed for the 
purpose of effecting those amendments. 

2. The first amendment it is proposed to make is intended 
merely to remove a doubt which has recently been suggested, as to 
whether the provisions of Chapter II of the principal Act apply to 
suits for accounts without any limit of value. Section 3 of the Bill 
will make it clear that these provisions do so apply. This appears 
to have been the intention of the f ramers of the Act, and to have 
been accepted as such until quite recently. 

3. The next amendment, by which it is provided that redemp- 
tion-suits are not to be dismissed as premature merely because the time 
for redemption as fixed by the mortgage has not arrived, appears 
essential in order to give full effect to the provisions of sections 12 
to 14 of the Act, which empower the Courts to set aside the terms 
of the agreement between a mortgagor and mortgagee and declare 
the mortgage-debt paid oft* whenever the mortgagee has received 
the amount of his advance with reasonable interest thereon. 

4. The amendment made by the introduction of the new section 
15B merely extends to decrees in mortgage-cases the rule of sections 
17 and 20 of the Act empowering the Court to direct that the 
amount of a decree shall be paid by instalments. If it is allowable 

t T(^kQn from Bombay Govt, Gwette for 1883, pt. VI, pp, 308—309. 

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statement of Objects and Reasons— (1882). 109 

to empower a Court to give sach a direotion in regard to an na* 
seonred olaim, it seems to be a fortiori allowable in the case of a 
secured claim. 

5. Section 6 and the 1st and 3rd clauses of section 7 of the 
Bill are intended to make applicable to decrees passed before the 
principal Act came into force, the provisions of that Act which pro- 
hibit the arrest of a debtor and the sale of his immoveable property 
in execution. These provisions were intended by the author of the 
Act to have retrospective effect, and it is clear that if they have 
not such effect, the relief afforded by them would fall very far short 
of what is needed; but owing to some misunderstanding, they were 
so drawn as to apply only to decrees passed after the Act came into 
force. 

6. The provisions of section 19 of the principal Act, which em- 
power the Court to relieve a judgment-debtor from the balance of a 
petty debt which he is unable to pay, and in the case of his liabilities 
being more extensive, to order insolvency-proceedings to be instituted 
regarding him, and the provisions of sections 22, 29 and 30 of that 
Act which empower the Court to order the Collector to deal with 
the immoveable property of an insolvent in certain ways for the 
benefit of his creditors, were intended to enable the Court to act of 
its own motion, and it is believed that if properly construed they 
have this effect; but as the Courts have felt some hesitation in ac- 
cepting this view and as the provisions in question are likely to 
prove almost a dead-letter unless the Courts act upon them of their 
own motion, words have been added by sections 5, 7 and 10 of the 
Bill to make it clear that they should do so. 

7. Sections 22 and 29 of the principal Act are framed so as 
to secure to the agriculturist against his creditors the possession of 
as much of his land as is required for his support and the support 
of the members of his family who are dependent on him; but this, 
it has been represented, is of no avail if the crops he grows on that 
land are liable to be seized at the instance of his creditors. To 
prevent this, it is proposed to insert a new section (22A) in the Act 
(based on section 30 of the Ajmere Courts Regulations, 1877) which 
will exempt from attachment in execution such agricultural pro- 
duce as may be required for the subsistence of the debtor and his 



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110 statement of Objects and Reasons— (1882). 

family and as seed, or as fodder for cattle nsed for agriGnltaral pur* 
poses; and to insert (section 9 of the Bill) words in section 29 whu^ 
will prevent such produce vestmg in the receiver in a case of 
insolvency. 

8. Section 40 of the principal Act gives to a Conciliator whose 
assistance is invoked by one party to a dispnte no power to compel 
the attendance of the opposite party. It was so drawn in deference 
to the opinion of the late Governor of Bombay, who apprehended 
that snch a power might be liable to abuse. The want of such a 
power has, however, been found in a large number of cases to 
render the Conciliation Chapter of the Act practically a dead-^letter, 
and on a reconsideration of the point, the conclusion airived at is 
that the risk of abuse is not so serious as to warrant^our withhold- 
ing from the Conciliators a power which is clearly essential to the 
effective working of the system. Section 40 has accordingly been 
amended by section 11 of the Bill so as to give the Conciliator 
power to direct the attendance of a party, and to make the party 
liable to criminal proceedings ii without sufficient excuse he fails 
to obey the summons. 

9« Section 47 of the Act, which prohibits the entertainment of 
certain suits and applications except on the production of a Concili- 
ator's certificate, will be amended by section 12 of the Bill, so as to 
make a certificate of no effect after a year from the date on which 
it is granted. This is thought necessary in order to prevent these 
certificates being used in terrorem^ and it will probably operate ben- 
eficially in another way, inasmuch as, when more than a year 
has elapsed from the time at which the attempt at conciliation has 
failed, it may not unreasonably be hoped that a fresh attempt may 
be successful. 

10. The most important alteration proposed by the Bill is the 
substitution of the system of superintendence and revision established 
by Chapter VII of the Act for appeal in all cases dealt with under 
Chapter III. That system has worked most satisfactorily in the 
class of cases in which it has been hitherto tried, and it is anoma- 
lous and inconvenient that the Subordinate Judges should be 
subject to one system of control in some of the cases falling under 
Chapter HI of the Act and to another system in other cases. Section 



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statement of Objects and Reasons— (1882). Ill 

8 of the Bill accordingly inserts a new seotioo (22B) in Chapter 
III to bar appeals, and section 13 makes a corresponding es:ten- 
sion of the powers of superintendence and revision conferred by 
Chapter VU. 

11. A farther extension of the application of Chapter Vll, 
bnt one of less importance, is effected by adding (section, 13) the 
Conciliation Chapter (Chapter VI) 1 tha portions of the Act in 
carrying out which Subordinate Judges are subject to superin- 
tendence and revision. The functions of Subordinate Judges under 
the Ck)nciliation Chapter are limited to filing agreements under 
sections 44 and 45; but as the filing of those agreements has im- 
portant legal effects, it is thought well to place it under some 
control. 

12. Section 14 of the Bill gives the Courts, which exercise the 
functions of superintendence and revision, power to refer points of 
law to the High Court under section 617 of the Code of Civil Pro- 
cedure. This has become necessary as the High Court has recently 
held that these Courts do not at present possess that very necessary 
power. 

13. The repeal of the last thirteen words of section 68 of the 
principal Act as amended by Act XXIII of 1881 merely correct 
what would appear to have been a slip in the drafting of the latter 
Act. The object of those who proposed the amendment of the section 
last year would seem to have been merely to admit legal practitioners 
before the Subordinate Judges; but the amendment actually made 
admits them also in cases before Conciliators and Village-Munsife in 
which the amount or value of the subject-matter exceeds one 
hundred rupees^ 



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OPENING SPEECH. 

Extract from the proceedings of the Legislative 
Council of the Governor-General of India. Vol.XXl, 
pp. 389 to 391. (1882) 



The Honourable Mr. Hope moved for leave to introduce a Bill 
to amend the Dekkhan Agi-icnlturists' Relief Act, 1879. He 
said :— 

'* I think that the fact of this being the second application ^^hich 
it has been necessary to make to this Council for the amendUiOnt of 
the Act of three years ago is a very remarkable illustration of the 

capabilities of language for concealing our thoughts The 

alterations which it is proposed to make in the Act ••...•.•• are, in 
the main, three. The first consists of two or three provisions which 
deal with the subject of redemption. It is proposed that the pro- 
visions relating to suits for an account should apply to suits for an 
account and redemption where mortgaged property is concerned, and 
that redemption its<^If should be allowed to take place though the 
period fixed for it may not have arrived. Moreover, it is desired to 
carry out the intention of the original Bill, that the instalments 
contemplated by section 20 should be allowed in redemption-suits as 
well as in other suits. 

Under the second head is an amendment of sections 21 and 22, 
so as to carry out the original intention that they should be retro- 
active, and should apply to all the enormous number of old decrees 
which were then in existence. In consequence of their having been 
interpreted not to have retro-active efiect, it has occurred, first, that 
whereas we thought that we had put an end to imprisonment for 
debt, some sixty persons have been imprisoned during the last two 
years, besides such a considerable number of warrants have been 
issued but not executed ; and, secondly, that management by the 
Collector, which is a suitable measure for dealing with such old 
cases, has been held to be inapplicable. 



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The Hon'ble Mr.Hope's Opening Speech— (1882). 113 

Next it is proposed to niake clear what was always intended, 
that the Courts, when directing insolvency-proceedings to be insti- 
tuted, should be able to do so of their own motion, and not simply 
when they were moved by the judgment-creditor in the suit, who 
perhaps would be a person interested in the opposite direction. 

These are the three principal alterations which it is proposed to 
make. Besides these, there are two or three minor alterations or 
improvements in the detailed machinery, by which it is proposed to 
make the Act more consistent and harmonious. The first is that of 
providing for a revision instead of an appeal in all saits to which 
sections 12 to 15 apply, so as to avoid the anomaly of different 
controlling authorities dealing with tlie same subject. Secondly, we 
propose to allow the Conciliators to summon either of the parties in 
a case who does not make his appearance, and also to limit the 
certificate which the Conciliator gives to a certain fished time in its 
operation^ so as to prevent its being used as a means of intimidation 
for an indefinite period. Thirdly, it is proposed to give to the Special 
Judge power to refer any difficult* case that may arise for the 
opinion of the High Court t.r.." 



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114 

The Honourable Mr. Hope^s Speech on the report 
of the Select Committee — (1882). 

^ As to ihe contents of the report I should allnde to 

one or two of them. One of the most important provisions of contem- 
plated by the Bill as introduced was one which sabstitnted a revision 
for appeal in all cases under Chapter III of the Act. This provision 
was inserted, as we understood, on the recommendation of the Bombay 
Government. .•••••••.•••••• The Bombay Government, however, on 

further consideration, have withdrawn their original suggestion. 
They think that it would be better to leave that portion of the matter 
as it stands, partly on general grounds and partly because the change 
might augment and interfere with the work of the Supervising Officers. 
So in accordance with this recommendation of the Bombay Govern- 
ment, the Committee propose to withdraw that provision altogether. 
The next point which perhaps is of some importance relates to suits 
for an account. The Bombay Government have always been anxious 

from the first that the-raiyat should be able to bring a suit 

for an account as distinct from an ordinary suit for redemption. 
The effect of a suit for redemption is that ordinarily a decree is passed 
and a time is perhaps fixed for payment ; but if there was default, a 
foreclosure would then follow. On the other hand, what the 
Bombay Government appear to have wished was that a man should 
be able to bring a suit for an account simply in order to learn how 
he stood and then he should have the option of afterwards proceeding 
on the same suit to secure what the redemption suit would hate 
given to him or of dropping the whole matter ••«... 

As far as the Bill goes, 1 think these are the only two points 
vrhich need special remark 



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Amending Act No. XXIII of 1886. 
Statement of Objects and Reasons^ 

The objeot of this Bill is to make in the Dekkhan Agrioulturists' 
Belief Act, 1879, certain amendments suggested by a report on the 
working of the Act and by the farther experience gained during the 
four years which have elapsed since the Act last underwent revision. 

2. By section 3 of the Bill it is proposed to empower the 
Local government, with the previous sanction of. the Governor- 
General in Council, to extend the Act wholly or in part to any 
district in the Presidency of Bombay. The effect of this provision 
will be to render it unnecessary for the Council of the Governor- 
General to undertake legislation whenever it may be deemed ex- 
pedient to extend to any district either the whole of the Act or any 
particular provisions of it, such as those requiring the history of 
transactions with agriculturist-debtors to be investigated or those 
relating to the mode of taking accounts. 

3. By section 4 the expression ^lease' is defined as in the 
Indian Registration Act, 1877. The insertion of this definition in 
section 2 of the Ac{; is deemed desirable because in s. 56 the word 
^lease' must be taken to mean a kabuliyat or undertaking to 
cultivate or occupy rather than a lease in its ordinary sense. 

4. Section 5 has been introduced, on the recommendation of 
the Special Judge, for reasons which are stated as follows: — 

" Section 7 of the Act merely makes the examination of the defendant 
compulsory in all suits under Chapter II, which includes even non-agri- 
culturist Buits; but sections 13-14 apply to many suits which affect agri- 
culturists only and do not fall under Chapter II, and it is even more im- 
portant that the defendant should be examined as a witness in such suits 
than in many of the suits to which Chapter II applies. The defendant is 
generally the debtor, but in redemption-suits it is the plaintiff who is the 
debtor, and it is his examination that is most necessary. It is, moreover, 
almost impossible for the Courts to investigate the past history of an old 
debt in a satisfactory manner without examining both creditor and debtor 

t Taken from Bombay Govt. Gazette for 1886 p*. VI pp. 220, 221. 

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116 Statemeat of Objects and Reasons— (i886). 

as witnesses. Again, unless a provi^on against exrparte deerees be inserted 
in Chapter III, it will not be possible to guard against ex-parte decrees in 
other districts to which the Act inay hereafter be extended without also 
extending the other provisions of Chapter II at the same time. " 

5. Standing crops are usually the legitimate seourity for an 
advance for ihe pnrposes of caltivation. It is proposed, therefore, 
by section 6 of the Bill, to make the standing crops of an agri- 
onltnrist liable to be taken in execntion of a decree even though 
they have not been specifically mortgaged for the repayment of 
the debt to which the decree relates. 

6. The proposal to confer on Conciliators the power to require 
the attendance of persons against whom applications are made 
under section 89 of the Act was negatived by the Council of the 
Governor-General in 1882. The Government of Bombay has now 
urged the reconsideration of the proposal on the ground that the 
present law deprives the Conciliator in a large proportion of cases 
of all chance of exercising his functions. The statistics of late 
years fully support this view, while they prov6 that, where parties 
have attended before Conciliators, conciliation has been annually 
more and more successful*. It is proposed, therefore, by section 7 
of the Bill, to empower selected Conciliatiors not only to invite, 
but to require, the attendance before them of persons against whom 
applications are made. 

7. Sections 8, t) and 10 of the Bill modify those provisions of 
the existing law which relate to registration, by requiring documents 
of which registration is compulsory under the Indian Begistra* 
tion Act 1877, to be registered by Begistering-officers appointed 
under that Act instead of by Yiilage-Begistrars appointed under 
the Dekkhan Agriculturists' Belief Act, 1879. But Begbtering- 
officers under the former Act are, where the executioits of those 
documents are agriculturists, to observe the procedure prescribed 
for observance by Village-Begistrars under the latter Act. Village 
Begistrars are to continue to register documents of which the regi- 
stration is not compulsory under the Indian-Begistration Act,1877. 

* The report of the Special Judge published this year shows that of 
late the success of the coQciliation systen; has been to a great extend 
limited. 



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statement of Objects and Reasons-»(x886). li;^ 

They are, however, to be relieved of mtioh of the olerioal labou^ 
imposed on them by the enlisting law. Instead of making at least 
two copies of the documents which they register, they are to enter 
in their registers, in such form as may be prescribed, abstracts only 
of the documents; and provison is made for granting copies of the 
abstracts free of charge, and for the admission of the copies as 
evidence of the contents of the documents. 

8. The reasons for the amendments which it is proposed by 
section 11 of the Bill to make in section 72 of the Act are stated 
by the Special Judge as follows : — 

- '* The words *not being merely a surety for the principal debtor' 
were introduced by Act XXIII of 1881, in order to prevent the 
anomaly of the agriculturist surety of a non-agriculturist principal 
being held liable for a debt, after such debt has become tim^-barred 
as against his principal; but the amendment has itself produced a 
converse anomaly, namely, that when principal and surety are both 
of them agriculturists, the extended period of limitation applies to 
the principal and not to the surety. As soon as the recent decisions 
io this effect become geinerally known, the lesuU will be that even 
the principal debtor will lose the supposed benefit of the extended 
period «f limitation, because few creditors will care to wait for the 
extended period when such waiting will deprive them of their 
remedy against the surety. I may mention here that the expression 
suits under this Act at the beginning of section 72 is objectionable 
because there are no suits properly speaking ^ under the Act. I 
think the words should be sxdts of the description mentioned in sec^ 
tion 5, dause {to). This would include all suits on bonds, khatas, 
wirtten acknowledgments, and the like, and would exclude suits 
for rent, suits for damages &c, to which there is no necessity of 
applying a special law of limitation. " 



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OPENING SPEECH. 

The HoQonrable Sir Theodore Hope moved that the Bill to 
amend the Dekkhan Agrioultarists' Belief Acts, 1879 to 1882, be 
referred to a Select Committee. He said :— 

^^ I do not think ••. that it U necessary &r me to tronble 

the Council with what, as regards the majority of the amend- 
ments which this Bill proposes io effect, would be hardly more 
than a repetition of my remarks on the last occasion. But there is 

one of those amendments, on which I skfllU be expected to give 

a little further explanation ; that is the section relating to concili- 
ation, by which it is proposed to invest the Conciliators with power 
to require the attendance of either of the parties to the conciliation 
At present the Conciliator possesses the power of requiring the 
attendance of the applicant, but only of invitmg that of ttie 
defendant. 

In the first place, I may take the opportunity of pointing ont the 
very important position which this system cf conciliation has now 
obtained in the four Dekkhau Cellectorates to which the Act is 

applied. ......We find that, during the past year, the proportion 

of cases in which the parties camo to terms (which means that they 
settled their disputes without it being necessary to go to a Civil 
Court) was no less than 78 per cent.; or to put it in another form, 
more than 3 out of 4 of the cases, or nearly 4 out of 5, were settled 
in this simple and inexpensive way, instead of being subjected to the 
costly and dilatory machinery of the Civil Courts. This percentage 
of 78, moreover, is the more satisfactory, for we find that the pro 
portion has been growing every year since the Act was introduced- 
Inthe year 1880 the percentage of such cases was 52; in the 
following year it was 44 ; in the third year it was 58 ; in the fourth 
64; in the fifth year 73 ; and now we have it at 78..... ..With regard 

to the quality of the C/onciliators' decisions, which might seem open 
to question, it is very remarkable that, out of the whole of these 
8,990 cases, only 77 were objected to within the period for which 
the law provides that objections to the arrangement may be filed in 
the Civil Court by either party. Out of all these 77, the objections 



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Report of the Select Committee— ( 1886 ). 119 

were allowed ia only 37 instances. Besides this the Court, of lis 
own motion, under the powers which its has under another section 
of the Act, disallowed 38 of the agreements, as being either contrary 
to law or improper for some other obvious reason 

Passing now from the circumstances in which the conciliation 
has had a satisfactory effect to the opposite, we find that the cases 
in which conciliation could not come into play owing to th3 non- 
appearance of the parties without apparent cause are 00 an average 

about 64 per cent In order to secure this attendance of parties, 

1 may state that various expedients have been suggested short 
of allowing a power of summons and warrant; but, after full 
deliberation, it has been considered best to adopt the simple means 
already in vogue in the ordinary Courts of the Country, that is to 
say, that the summons should issue, and that in the case of non- 
compliance with the summons attendance should bo required by 
warrant. 



Tke Report of the Select Committee on the Bill of 1886. 

We the undersigned members of the Select Committee to which 

the Bill to amend the D. A. R. Acts, 1879-1882, was referred, 

have now the honour to submit this our report: — 

2. We h ave, on the suggestion of the Governor of Bombay in 
Council, defined the expression " Standing Crops," and so amended 
section 58 that, while the whole of an instrument will be copied by 
the Village-Hegistrar into his register; it will not be incumbent on 
him to deliver a certified copy of the instrument, or of the copy of 
it in the register to the parties except on their application. 

3. We have corrected in s. 3, clause (y), a misprint which has 
been brought to our notice by the officiating Special Judge, 

4. We have added to the Bill a section in the terms of 9. 19, 
Act XXII of 1882, in order that persons havmg claizns of the 
descriptions mentioned in s. 3, clause (x) may not be prejudiced by 
the application of the special rules of limitation prescribed in s. 72 
being restricted to suits of the description mentioned in s. 3j cl. (w). 



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Amending Act Vl of 1895. 
Statement of Objects and Reasons.^ 



The object of this comparatively short Bill is to introduce into 
the law known as the Dekkhan Agriculturbts' Relief Acts a few 
changes suggested by a Commission which was appointed by the 
Government of India ia 1891 to inquire into the working cfthe 
Ads. The larger projects recommended by that Commission have 
no bearing upon this Bill except in one particular which will be 
noticed presently, and but for one reason the Government of Bombay 
would have been quite content to leave the law as it stands and 
to defer the alfcerations now proposed until the Acts could be con- 
solidated into one enactment. The reason which mainly induces 
the Local Government to approach this Council now is to be found 
in section 4 of this Bill. Already the law permits the extension 
of the Act to any other districts, but it happens that the physical 
and agricultural condition of various talukas in the same district 
differs greatly and the Government of Bombay in pursuance of 
past policy desires only \o extend the Acts to those areas where 
they are really needed. JSince this amendment required legislation, 
the opportunity has been taken to give effect to some of the re- 
commendations of the Commission by repealing sections 8, 9, 15, 
19 and 73 of the present law. Section 14 of the existing law is 
only repealed because it gains a wider application by being 
transferrd to Chapter XI as 69B under section 9. By section 5 of 
the Bill the definition of *' agriculturist " is slightly changed so as 
to make clearer the intention of the Legislature in the second rule 
and to exclude from the special law intended for agriculturists an 
owner of alienated land whose only title to be deemed an agri- 
culturist in one of the districts to which the Acts apply arises from 
his receipt of rents from his tenants in that district. Section 6 is 
drafted in deference to the views of the Commission with only such 
conditions as appear indispensable. Section 7 provides an obvioasly 

* Taken from Bombay Govt. Gaaette for 1894, part VI, pp. 77, 78. 



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statement of Objects and Reasons~(i895}. 121 

desirable interval to enable the mortgagoi^ in certain cases to find 
the money payable nnder a decree; and section 9 recognises under 
s. 69 A a practice common in the Dekkhan. Section 10 limits the 
special Limitation Law to the fonr districts in which the Act runs, 
and thns endeavonrs to meet the recommendation of the Com- 
mission who have proposed an alteration in the general Limitation 
Law» The other changes require no special notice. 



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Opening Speech of the Honourable 
Mr. Lee Warner. 



Extract from the Report of the Speech given in 
Vol XXXIII, pp. 330 to 332 of the Proceedings in the 
Legislative Council of the Governor-General — 1894. 

The Honourable Mr. Lee Warner moved for leave to introduce 
a Bill to amend the D. A. R. Acts, 1879 to 1886. He said:— 

" My Lord, ..,. before explaining the amendment, I will briefly 

recall to mind the course of events leading up to the recent Com- 
mission which has now brought us to further legislation. On the 17th 
of July 1879, The Honourable Mr. Hope introduced a Bill for 
amending the procedure of the Courts in certain classes of litigation 
in four districts in the Dekkhan, and relieving, so far as any Legis- 
lature can deal with a great agrarian and social problem, certain 
incidents of agricultural distress and discontent which had 

attracted prominent notice in that part of India. The Bill as 

amended became law in October, and in 1881, 1882 and 1886, the 
Act XVII of 1879 was further amended by this Council. 

A healthy and most beneficial criticism of the Act was excited 

both in this Council and elsewhere ;.... Some of the fears which 

then racked the minds of observant critics may be mentioned. It was 
feared that any attempt to place the peasant*debtor, weighted wi& 
ignorance and inherited debt^ and his creditor, with his superior 
advantages of purse and intelligence, upon a fairer footing would 
produce injustice by interrupting some of the legitimate profits of 
the money-lender's trade. The exercise of a correctional power over 
contracts and improvident bargains seemed a novel and dangerous 
task, and it was anticipated that the money-lending class would soon 

discover methods of evading the law. The demoralisation of 

rural society was predicated as a consequence of the temptations 
offered by paternal legislation to the setting up of false defences. 
Errors due to corruption, incapacity and irresponsibility were ex- 
pected to flow from the substitution of revision for regular appeals. 
The system of conciliation would only create delay and offer op- 



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Speech of the Hon'ble Mr. Lee Warner. ^23 

portunities for evasion of the Act and for corrupt praotioes. The 
* blundering benevolence ' of the provisions as to registration would 
lead to oral contracts. Such were some of the criticisms offered in 

this Council which found echo elsewhere. .., The Government 

of India decided to appoint an independent Commission, under the 
presidentship of Mr. J. N. Neill, to ascertain how far the results of 
the legislation had justified the anticipations of its promoters. The 
report of the Oommigsioners, dated 11th June 1892, confirmed the 
opinions expressed by those who preceded them that a load of debt 
had been taken off the raiyat's shoulders without demoralising him 
or shakmg his credit and without ruining the money-lender. They 
affirmed the success of the six leading provisions of the Act, namely, 
(1) the provisions against ex parte decrees, (2) those for going behind 
tiie bond, (3) those for redemption-suits, and suits for account, (4) 
those for payment by instalments, (5) the abolition of imprisonment 
for debt, and (6) the limitations upon sales of immoveable property 
to xsases where it was specially pledged ; and recommended the 
retention of conciliation and compulsory registration. They criticised 
each section of the Acts and advocated a series of amendments. 
They went further and proposed an outline of the general Act for 

agriculturists through out India Upon this report the 

matured views of Sir Raymond West are not wanting and a paper, 
which he read before the Society of Arts in London on the 18th of 
May, 1893, will no doubt have attracted the attention of those who 
are interested in the whole question . Meanwhile, the Government 
of Bombay had in March of last year arrived at its conclusions upon 
the report, so far as that report dealt with the law actually in force 
in the Dekkhan, and addressed the Government of India. The Bill 
which I seek to introduce gives effect to the final decision of the 
Government of India upon the particular issues so raised /'f 

t What has been omitted here refers to the amendments proposed in the 
BUI and that portion of the speech is not given here, because the statement 
of Objects and Keasons given above contains a very nearly simihur treatment 
of the amendments. 



'•'I 



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124 

Report of the Select Committee on the Bill , presented 
to the Council of the Governor General of India, on the 
1th February 1895. 

^< We, the undersigned, members of the Select Committee to 
which the Bill to amend the Dekkhan Agriculturists' Relief Acts, 

1879 to 1886, was referred, have considered the Bill and 

have now the honour to submit this our report, 

2. Prom section 3* we have omitted the words " and the last 
seventeen words of section 7" and have added a section 6t to the Bill 
which slightly amends section 7 of the Dekkhan Agriculturists' 
Belief Act. This alteration meets to a large extent the views of the 
Government of Bombay and of the Secretary of State. 

3. We have given our most careful consideration to the 
definition of' Agriculturist' in section 2, and although we might not 
agree in maintaining the present definition if we were introducing 
the law for the first time into the Dekkhan or proposing its extension 
to auother Presidency, we have accepted the concurrent views of the 
Commission, of the Judges of the High Court of Bombay, and of 
other officers consulted, that no changes which are not absolutely 
necessary should be made in the existing definition of status. We 
recognize the force of the arguments, that the law passed in 1882 
has been interpreted by the Courts and applied for thirteen years to 
transactions between debtors and creditors in the Dekkhan, where its 
effect is fully understood, and that it would be more disadvantageous 
to deprive persons now entitled to relief as agriculturists of the bene- 
fits of the Act than to admit new classes to those benefits. Such 
changes as we have made do not materially alter present definition. 

4. Section 1\ gives effect to a recommendation made by the 
Government of Bombay, and is intended to assist the Courts in 

* The reference is to the section in the Bill as drawn np before it was 
presented to the Select Committee. The Bill is published in part YI of the 
Bombay Government Gazette, issued on the 5th April, 1894. The section 
as drawn up was :— << Sections 8, 9, 14, 15, 19, and 73 and the last seven 
words of 8. 7, are hereby repealed." 

\ The section was : — « In section 7 before the word unnecessary " the 
word < clearly * shall be added. 

X This is s. ISA of the D« A. B. Act, 



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Report of the Select Committee— ( 1895 ). 125 

taking accounts where doubts exist as to the value of the profits of 
mortgaged property. We have, in view of this addition, abandoned 
the proposed alteration of the existing law regarding agreements to 
set off profits in lieu of interest and other charges. At the same 
time we have adopted a farther suggestion of the Government of 
Bombay in section 9 of the revised Bill by which the Courts will be 
empowered, in passing a decree for redemption or foreclosure in 
certain suits, not merely to order payment by instalments, but also 
to continue the mortgagee in possession until the debt found due by 
the mortgagor is paid off with interest. 

5. Section 10* gives effect to the suggestion that for purposes 
of execution standing crops should be deemed to be moveable 
property. 

6. Sections llf and 12$ were not in the Bill as introduced 
in the Council, but they embody the existing practice and give effect 
to the intentions of certain rules made by the Local Government 
under the Acts for regulating procedure of Village Munsifs and 
Conciliators. 

7. Sections 131f and 14|| call for no remark. 

8. Section 15§ replaces section 8 of the Bill as introduced, and 
enables the Local Government to place the Village-Registrars under 
the control either of the Inspector-General of Registration or of the 
District Officer, or both. The occasion has been taken to give the 
Local Government power to destroy certain unclaimed documents 
which, if they were registered under the Indian Registration Act, 
1877, and not under Chapter VII of the Dekkhan Relief Acts, 
might be destroyed. 

* This is an amendmeot to s. 22, as indicated in the text. 

I This is an amendment to s. 36. 

t This is section 44 of the D. A. R. Act. 
IF This is an amendment to section 51 (b). 

II This s. 52 of the Act. 

§ This is 8. 61 of the Act, reproduced as drawn out by the Select Com- 
mittee with a few modifications. Vide proceedings in Supreme Legislative 
Council for 1895, Vol. XXXIV, p. 178, 



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126 Report of the Select CommUtee- ( 1895 )• 

9. In seotioii 16 we have altered the terms of seodon 9* of the 
Bill as introdooed so as to meet the views of the Local Government 
as £Eur as we considered it safe to do so, 

10. Section 17t merely re-enacts the existing law embodied in 
section 14 of the Acts with a view to making its provisions applica- 
ble not only to sections 13 of the Act but to the whole of the 
Dekkhan Agricnltnrists' Belief Acts. 

IL Section 18$ is retained as originally drafted in accordance 
vrith the conclusion arrived at by the Government of India that it 
is not expedient to extend the special limitation period, in four 
districts, to any other districts or part of the districts to which the 
Acts may be extended and in which the ordinaiy limitation law 
will run. 

* The 8. 9 was follows :^<< 69a. The last olanse of section 258 
of the Code of Civil Procedure shall not apply to payment out of Court 
made in any proceeding under this Act. 

t This is section 7lA of the Act; the word << where interest is chargeable 
as such," in s. 71a being added in the course of the discussion while passing 
the amendment. Vide proceedings in Supreme Legislative Council, for 1895, 
Vol. XXXIV, p. 178. 

X This refers to the amendment in s. 72 of the Act. 



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The Hon'ble Mr. Lee Warner's Speech on the 
Report oi the Select Committee. 

Extract from the Proceedings of the Supreme Legislative 
Council for the year 1895, Vol- XXXI V, pp. 169-173. 

■ loerocecpwi" 

The Honourable Mr. Lee Warner moved that the Report of the 
Seleot Committee on the Bill to amend the D. A. R. Acts, 1879 to 

1886»be taken into consideration. He said: — *«My Lord 

the fltst material changes occur in s. 2, where that difficult crux 
arise*— who or what is an agriculturist ? The solution necessarily 
gave rise to differences of opinion, and I may admit that, if we had 
been legislating for another part of India in which the village-system 
and the land-tenure differed, an agreement in favour of the defi- 
nition adopted might have proved more difficult of attainment. In 
Bombay you have a large peasant proprietary and numbers of village- 
servattts who are holders of alienated land. In view of these facts the 
Select Committee, whose report was signed on 15th December 1882, 

recorded an opinion to which the Select Committee of this 

year paid due deference. It must not be forgotten that twice before 
1882 had this Council defined the status of an agriculturist, and its 
third attempt wasjustified by the Select Committee in these terms:— 

« It would probably be irapossiblo to frame a definition which would 
not go too far one way or the other » 

Those who desire to appreciate the difficulties of the question will 
do well to read Dr. A. P. Pollen s letter. No. 386, dated 7th June 
1880, to the Bombay Government, in which in paragraph 64 he 
asked, in reference to nine classes of proprietors or land-workers, 
whether they were agriculturists. In a letter, dated Simla 30th 
July 1881, Mr. Hope expressed his opinion upon Dr. Pollens 
letter and the final issue was the Amending Act XXII of 1882, 
which with the rules 5 and 6 added in 1886 gave us the existing 
definition. The Select Committee has, I think, wisely resisted the 
temptation to insert the doubtful words * by members of his family,' 



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128 Speech of the Hon1>le Mr. Lee Warner* 

or to exclude the whole class of inamdars and even holders of un- 
alienated land who might, bat do not, cnltivate their lands. In 
the Dekkhan the Village-servants are ranked amongst holders 
of alienated land, and the Acts of 1879 to 1886 were deliberately 
devised by Sir Theodore Hope in order to bring peace and im- 
proved procedure both to the agricultural classes of the four districts 
and to others also. There are, however, some important changes 
now introduced which deserve attention. In the first place the 
repeal of s. 73 opens to revision a decision as to status and leaves it 
to judicial determination in the same way as any other question 
of fact. In the next place, the words added to Rule 2, namely 
* within the meaning of the word as then defined, ' fix the date from 
which the status created by any of the Acts must have been acquired. 
The Committee, whilst it generously refrained from material alter- 
ations in the definition of status, decided however to protect the agri- 
culturist worn out by old age, crippled by disease, or absent on 

military duty, from loss of his status. I must confess that I 

felt, and still feel, some fear that the operations of sections 11 and 
56 acting upon the addition now made to the Bill will prove in- 
convenient in the case of the peasant soldier engaging in loan 
transactions in a distant cantonment, and I should have wished 

that the whole definition had been left alone .The definition 

of 'standing crops' is only made clearer, not altered. But with this 
must be read section 10, which is devised to make standing crops 
moveable property for the purpose of attachment under the Act... 
••.The last word has not yet been said upon s. 7 of the Acts as 
amended by s. 6 of the Bill. The proposal which I submitted to 
the Committee was threefold: first, to make s. 7 which requires the 
summons to be for final disposal of the suit and the Court to ex* 
amine the defendant as a witness one of universal application, not 
only to suits under Chapter II of the Act, but also to suits under the 
Acts. Secondly, I wanted to secure that the cost of issuing the sub* 
sequent summons after the first appearance of the defendant should 
not fall on the plaintiflF; and, thirdly, in view of the repeal of section 
8 of the Act, to add a proviso that a written statement would not 

render the examination of the defendant unnecessary The 

Committee decided that, the section should remain in Chapter 11^ 
that no legislative direction as to relieving the plaintiff of the cost 



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Speech of the HonTile Mr. j^e Warner. 129 

of issning sammons was d6sirabl§^.^d, as regard tho explanation, 
they hoped that the addition of the word ^clearly' would emphasize 
the necessity to examine the defendant In section 11, 1 was per- 
sonally anxious to obtain a power of revising the Munsif s decinon, 
if he acted with such irregularity as to cause a miscarriage of justice. 
There are 89 Village-munsifs before whom 7, 665 suits were insti- 
tuted in 1893. Their decisions can only be revised for misconduct 
or corruption. They are honest men whose knowledge of law is very 
limited, and I do not think their usefulness would be impaired if 
their decisions were revised when they were guilty of meterial 
irregularity causing miscarriage of justice. A major iiy of the Select 
Committee, however, held the view that the finality of the munsif s 
decisions was most desirable, and that it was not amiss if this village 
Hampden acted in consonance with village sentiment, although it 
might be in opposition to the view which the revising judge might 
take. It was pointed out that in Madras the munsifs exercised a 
final judgment on the questions brought before them. I doubt 
whether in Bombay our Village-munsifs, new to the work, can be 
put into the same category as the Madras munsifs, but I am not 
prepaffed to appeal to the Council on this matter of opinion.«.There 
remains only s. 18*, which to my regret limits the special periods of 
limitation to the four districts in which they now run, and denies 
them to the districts or parts of districts to which this law may be 
hereafter extended. In the Dekkhan, with its uncertain rainfall and 
the natural tendency of a money-lender to take advantage of his 
debtor's difficulties, a short limitation means frequent renewal of 
bonds at enhanced amounts and a rapid accumulation of debt .f" 

* This refers to the ameodment in s. 72 of the Act. 
t That part of the speech which refers to s. 7lA has been omitted, as it 
appears in a note to the said section. 



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Amending Bombay Act No. I of 1902. 
Statement of Objects and Reasons. 



The object of this short Bill is to introduce into the law, known 
as the Dekkhan Agriculturists' Belief Acts, an amendment, which 
appears calculated to obviate an inconvenience to which attention 
has been directed by the Inspector-General of Registration and 
Stamps. Paragraph 3 of section 59 of the Act (XVII of 1879) 
requires that the original of any instrument, which is to be modi- 
fied, or wholly or partly superseded by a fresh instrument, shall 
be produced before the Village Begistrar. It has been found that 
the absence of any exception to provide for cases in which the ori- 
ginal may have been lost or destroyed, or is otherwise for good 
reasons not available, occasionally produces hardship; and the Local 
Government after consulting officers of experience are of opinion 
that such an exception, provided with adequate safe-guards against 
the possibility of its being used as a means for fraud, should be 
embodied in the Act. It b considered that this end may be effectively 
secured by the proposed amendment of section 59 of the Dekkhan 
Agriculturists' Relief Act, 1879, to which the previous sanction of 
the Governor-General, has been obtained, as requu*ed by section 5 
of the Indian Councils Act, 1892. 



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INDEX. 

Account : 

suit for—, pi. I, 33, 35, 36, 76, 90-93 ; See pt. HI, 114. 
mode of taking—, pt I, 57-59, 68.76, 
—by Conciliator, pt. 1, 137, pt. II, 15. 
— not to be taken on assumption, pt. I, 70. 
agrioulturists entitled to have statement of— ,pt. 1, 164. 
penalty for not giving — ,pt. I, 165. 
a balance of—, pt. I, 154. 

Act: 

how to construe this — ^ pt. I, 2, 3. 

application of this — , pt. I, 6. 

special features of this —, pt. I, 4, 5. 

the title of this—, pt. 1, i, 7. 

commencement of this — ,pt. 1, 7. 

local extent of this — , pt. I, 7, 8. 

repealing and amending Acts, pt. I, 9. 

— how far retrospective, pt. I, 9-12. 

to which this — may extend, pt. 1, 21, 22. 

Bombay Oivil Oourts — , pt. I,. 45. 

working of the Act reviewed, pt. Ill, 122, 123. 

Agreement : 

or Kabuliyat, pt. I, 134, 

— finally disposing of the matter, pt. I, 123. 

procedure when—finally disposes of the matter,pt. 1,120, 121 

— to be reduced to writing, pt. 1, 119, 120. 

duty of Conciliator to bring the parties to — , pt. I, 118. 

shall order such— to be filed, pt. I, 123. 

effect of — as decree, pt, 1, 124. 

Agriculture: 

the term — explained, pt. I, 20, 21. 
— carried on within the limits, &c,, pt I, 21, 22. 
AgriGvltural labour: pt. I, 22, 23. 



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{{ Index. 

Agriculturiit : 

definition of the term-, pt. 1, 16, 2S, 24 ; see also pt. Ill, 105 

106, 107, 124, 127, 12S. 
explanation of the term — , pt. 1, 16-23. 
analysis of the term — , pt. I, 16. 
—shall be taken to mean a person, &c. pt. I, 17, 18. 
— shall be deemed to reside, &c.« pt. I, 24. 
— shall inolade a person &c., pt. I, 24. 
the privileges of an — , pt. I, 28, 29,30. 
—to be sued where he resides, pt. I, 53-55. 
mode of execution of instrument by — ,Cb. VIII and VIIIA. 
limitation to suits against — , pt. I 174, 175. 
decision as to whether a person is an agriculturist — final, 

pt. 1. 180, 181. 
Annual rests : pt. 1, 71. 

Appeal : 

no— to lie, pt. I, 50- 

provisions as to—, pt. I, 50. 

— in a redemption suit, pt. I, 50, 51. 

jurisdiction of District Judge in — , pt. I, 51. 

the plea of bar of—, pt I, 51. 

— barred in insolvency: pt. !„ 109. 

Application : 

— of the Act, pt. I, 6. 

—of Chapter II, pt. I, 33 35, 50. 

—of Chapter III, pt. I, 52, 53, 109. 

— in contravention of s. 22, pt. I, 102. 

— under s. 39, pt. I, 132. 

admission of — , pt. I, 132, 1 33. 

disposal of — , pt. 1, 134. 

transfer of — before conciliator, pt. I, 136. 

Arbitration : 

the right to refer to — not affected by s. 12, pt. I, 57, 68. 
old law as to rf ference to — , pt. I, 77, 78. 
procedure where agreement is for reference to — , pt. I, 124. 
filing a private award — not a suif, pt. I, 126. 



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Index. ill 

Arming of tlie money lender^ pt, III^ 69. 
Arrest : 

— of agriculturists abolished, pt. I, 97. 

— not a condition precedent for insolvency, pt. I, 104. 

Assignee : 

rights of — of an agriculturist, pt. I, 28, 29. 

— of Government Assessment, pt. 1, 23. 

clauses (y) and (z) of s. 3 apply to suits against — , pt. I, 44. 

Attachment : 

immovaable property exempted from — , pt.jl, 98-102. 

— of equity of redemption, pt. I, 101, 102, 

— not a condition precedeat for insolvency, pt. 1, 104, 

agricultural produce exempted from — , pt. I, 181 pt. HI, 

109, 110. 
"—of standing crops, s. 22, pt. HI, 116y 119^ 125. 
Attestation : 

— by Village-Registrar, pt. 1, 156. 
Award : 

filing a private — no suit, pt. I, 126. 

Balance : 

— of interest not to exceed the— of principal, pt. I, 59. 
registration of — of account, pt. I, 154. 

Bar : 

— of appeal, pt. I, 50, 51. 

— of application of s. 258 of Civil P. Code, pt. I, 168. 

Bench : 

—of special Judge and Assistant Judge, pt. I, 139, pt. Ill, 
73,74. 
Burden of Proof i 

— as to payment of consideration, pt. I, 67. 
effect of admission on — , pt. I, 68. 

Certificate: 

issue of—, pt. 1, 125, 134, 135. 



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IV 



ladex. 



— in reference tbereto, pt. I, 128. 

objection as to want of — , pt. I, 129. 

—of no effect after a year,s. 47, pt. I, 128. ; pt. Ill, 110. 

effect of want of—, pt. 1, 125-127. 
Clvange of Law : 

effect of— pendente lite^ pt. I, 12-13. 
Change of Status : 

— by change in Law, pt 1, 18, 14. 

— by cbange in facts, pt. 1, 15. 

— at different stages, pt. I, 26 — 28. 

Civil Procedure Code: 

—how far to apply, pt. 1, 181-182. 
Collector : 

powers of— in insolvency-proceedings, pt. 1, 106-108. 

management of immoveable property by — ,pt. II, 1 — 4. 
Commencement : 

—of this Act, pt- 1, 7. 

— of the transaction, pt. I, 64-66. 

Conciliation : 

object of— pt. 1, 114; pt. Ill, p. 66, 72, 83, 84. 
system of... how far successful, pt. Ill, 116. 
Cmniliaior : 

appointment of—, pt 1, 114 pt III, 101. 
jurisdiction of a—, pt. 1, 115, 116. 
procedure before — , pt I. 117-123, 132-136. 
power of-to call and examine parties, pt. I, 117, 118, 
rules for the guidance of— ,pt I, 132, 137, part II, 11-15. 
the duties of — , pt 1, 135. 
■ charges to be made by — , pt. I, 136-137, part II, 12, 13. 

records, returns and accounts of—, pt. I, 137 pt II, 13-15. 
power of— to direct the attendance of party ,pt. Ill, 110, 116^ 
118, 119 
Consideration : 

— to be fully stated in every instrument before a Village- 
Registrar — , pt. 1, 158. 



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proof of— 5 pt. I, 67. , 
Construction : . 

general— ,pt. I, 2,3. 

— of this Act, pt. 1, 3, 4, 16. 

— of a preamble, pt. I., 2. 

— of the Code of Uivil Procedure, pt. I, 3* 

- of T. P. Act, pt. 1, 4, 

— of Legislative definitions, pt. I, 16. 
Court-fees: 

— charged by conciliator, pt. 1, 137, pt. ll. 12 

reduction & remission of-,pt. II, 59, 6J 
Decrees : 

— in redemption suits, pt. I, 78-89, pt. Ill, 225. 

execution of certain —pt. II, 58. 

instalment— ,pt. I, 84, 89, 93. 

provision against ex pc^rf^— , pt. I, 47 ; pt. Ill, 67. 
Defendant : 

—to be summoned as a witness, pt. Ill, 67k 

form of summons to- ,pt. II, 57^ 

compulsory es.aniination of — discussed, pt. Ill, 84^ 92, 93^ 
115, 116, 128. 

Dekkhan Riots : 

history of— .,pt. Ill, 68. 

causes of — ,pt. Ill, 65, 69. 
District Judge: 

powers of — in revision, pt. I, 112, 141*145. 

power of — to inspect, &o., pi I, 138, 139. 

power of — to withdraw case — ,pt. I, 138. 

power of — ^to transfer applications in conciliation, s« 51. pt. 

Ill, ior. 

conflict between District Judge and Special Judge, pt. I, 148 
Earns his livelihood:, pt. I, 18, 19. 

ceases to earn his livelihood — , pt, I, 23. 
Enquiry: 

— into the history of a transaction, pt. I, 56, 57, 60-63. 



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vi Iiidez. 

the nature of—, pt. I, 63, 66, 

— in other oases nnder s. 12, pt I, 66, 67, 

— into the causes of rayat's indebtedness, pt. Ill, 68-70' 

reasons for and against— discussed, pt. Ill, 75, 77^ 84, 93^ 94* 

Equity of redemption : 

is immoveable property, pt I, 101. 

Evidence : 

record of— ,pt. I, 49, 50. 

power of conciliator to take — ,pt. I, 119. 

power of Village-Munsif to take — , pt. II, G. 

JELcamination : 

—of the defendant as a witness, pt. I, 47, 48 pt. Ill 67. 
of defendant — under s. 12 compared, pt. I, 49. 

— of the parties, pt. I, 61, 62. 

Extent : 

local — of ijiis Act, pt I, 8. 

power of local Ooveroment with respect to the — of this Act^ 

s. 1, ptau, ii5, 

Eeatures : 

special— of this Act, pt. I, 4, 5. 

Fraiids : 

—by creditors— ,pt. I, 63, 64 pt. Ill, 71. 
—by debtor—, pt. I, 64, pt. Ill, 71. 

History : 

— of law and legislation, refereuije to — ,pt. I, 3. 
-H)f the transaction to be investigated, pt. I, 56, 57, 60—63 
pt. Ill, 66 (See enquiry). 

Immoveable property : 

management of— by Oollector, pt. II, 1-4, pt. Ill, 79. 
—when exemjpted from attachment, s. 22, pt. Ill, t>7. 
equity of redemption is — ,pt. I, 101. 
sale of — discussed, pt. Ill, 79 



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Index. 

Imprisonment : 

— abolished, pt. I, 97, pi III, 78.- 

provisions relating to — , are retrospective, pt III, 109. 
Indebtedness : 

causes of..., pt. Ill, 69-70. 
Index : 

—of Register, pt. II, 17 18. 
— of oases, pt. I, xv-xviii. 

Insolvency : 

jurisdicfion in- - , Ch. IV. 

direction to institute Insolvency-proceedings ( Old law ), 
pt. I, 94. 

provisions of — in the Code compared, pt. I, 103. 

the Law of—discussed^ pt III, 67, 80- 82, 85, 89. 

eflFect of—, pt. I, 109. 
Inspection : 

power of— ,Ch- VII, pt III, 73. 
Instalments : 

power to order payment by — nnder s. 15 B, pt I 84-86. 

— in suits for possession, pt. 1, 89, 90. 

— after an order absolute — ^,pt. I, 87. 

— after foreclosure, pt. I, 86 

order for— not to be varied, pt. I, 88. 

efiFect of default in paying — , pt. I, 89. 

— in suits for accpont, pt. I, §3. 

— in execution, pt I, 95-97. 

provisions for—, pt I, 96, 97, see pt III, 108, 109. 

Instituted : 

the term explained, pt I, 45. 
Instruments : 

copies and searches of — in registration; pt. II, 29-30. 

registration of — , pt. I, Ch. VIIL .: 

— requiring registration, pt. I, Ch. VlII,pp, 152, 153. 

consideratiou to be fully stated in — ,pt. I^ 159. 

previous — to be produced, pt J, 188. 



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viii Index* 

ex'^mption of— from registration, pt I, ICl. 

mode of execation of— by agriculturisti, pfc, I, 155 158, 162, 

exeootioa and registratioa of-— aader S3. 57 and 58, pt. II9 

Interest : 

cessation of — on deposit — ,pt. I, 94. 

balance of interest not to exceed the balance of principal 

pt, I, 59, pt. Ill, 97. , 
the accoant of—, pt. I, 58, 70, 71 pt. Ill, 97. 
oalcalation of — ,pt. I, 74. 
rate of— to be allowed, pt. 1, 169, 170, 173. 
where — b chargeable, pt. 1, 170-172. 
—after due date, pt. I, 172. 
—after suit, pt, 1, 172 173. 
— how far a matter of discretion, pt. 1, 173. 
high — not always a penalty, pt. 1, 1 74. 
old law of—, pt. 1, 77. 
compoand — , pt. Ill, 97. 

Jurisdldion ; 

pecuniar}- —under chapter II, pt. 1, 33, 34, 36, 39. 

-assumed through honest mi^-iDformation as to value, pt.I, 37. 

— of F. C. Subordinate Judges, pt. 1, 44. 

-of Small-Cause Court and Subordinate Judges, pt. I, 45-46- 

— of the Subordinate Judges in insolvency, pt. 1, 103. 

— of the Collector in managing the debtors property, pt. I, 98, 
106-108. 

—of Village Munsif, pt- 1, 110, 111. 

. — ot District Judge in revision, pt I, 143-145. 

•—of Court to admit Kabuliyats, pt, I, 122. 
Kahdlyat : 

registration of— pt. 1, 153. 

form of — under s. 43, pt. II, lU 

(Seeagnemeni). 



liaw 



01 1 — ,(8ee under the appropriate sections). 
As then defined by — , pt J, 25. 



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Index^ .. j^ 

S,Ili ^^''''' 

, pU definition of—, s, 2, pfc. Ill, 115. 

Limitation: 

the provisions of —confined to four district^ s»72, pt. Ifl, 129. 
.^. ' allowance in— nnder s. 48, pt. 1, 129-131. 

—for suits under ol. {w), s. 3 against agrioulturfet, pt. I, 174, 

175, pt. Ill, 67, 77, 78, 85, 117, 121. 
old law on—, pt i, 176, 178, 179, pt. Ill, 77. 

Monet/i pt, J, 32. 

Mortgage : 

mortgaged property, pt. 1, 41. 
— or sale distiogaishoJ^ pt. I, 41-43. 
construction of document of — , pt. I, 79. 
—to be valid only when written, pt. I, 168, pt. Ill, 103. 
Mortgagor : 

— not entitled to refund, pt. I, 75, 76. 

—entitled to decree for redemption within fixed time, &c^ 
Tu pt. J, 78-82. 

giving time for payment by—, pt. I, 82, 83. 
payment by— in instalments, pt. I, 84, 89. 

—may sue for account, pt. I, 90, 91. 

'' Notice I 

— how far necessary in granting review, pt. 1, 148. 
Notifications : 

sae the table of notifications, pt. II, i-xii. 
Flace of suing: pt. I, 53-55, pt. Ill, 93. 

Pleaders : 

excludod in cortaip cases, pt. 1, 166, pt. Ill, 74, 75^ 85, 

107, 111. 
power of Court to appoint — ,pt. 1 167, pt II, 67. 

Possession : 

giving — to mortgagor before debt is paid off, pt. I, 80% 



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X Indeac. 

Preamble: 

oonstruoiion of—, pt. 1, 1-2, 

Procedure : 

—of Village-mQQsif, pt, II, 4-li. 
— of conoUiation, pt 1, 117-124, 132-136, pt, II, IU15. 
if Registration, pt. U, 21^33. 



Process-fee : 

— charged by conciliator, pt. I, 136, 137, pfc. II, 13. 
conoefJsioD in-, pt. II, 55. 

Profits : 

meaning of—, pt. I, 69. 

setting of—, pt. I, 69, pt. Ill 96. 

Proof I 

^iunde of payment, pt. 1, 155. 

burden of — as to payment of consideration,"pt. I, 67. 

effect of admission on burden of — ,pt. I, 68. 

Receipt : 

agriculturists entitled to — , pt I« 163. 
penalty for not giving—, pt. 1, 165. 

Receiver i 

appointment of — , pt. 1, 105. 
effect of appointing — , pt. J, 108. 

Records', 

— returns and accounts of conciliators, pt, 1, 137, pt. II, ISk 
custody of—, pt. II, 58, 59. 
destruction of — , pt. II, 55, 59. 
of registration, pt II, 16, 21. 

RefereMei 

to Special Judge or Subordinate Judge by Conciliator, 

pt. 1, 135. 
the power of— under ch. VII, pt. I, 145, 146, pt. Ill, 111, 

113. 
— to the previous history ot law and legislation, pt. I, 3. 



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Index. xi 

Refund : 

f money already oome into the hands of creditor, 75-76. 

f fees, in registration, pt. II, 32-33. 
register of — , pi. II, 48. 
mortgagor not entitled to—, pt. I, 75, 76. 

Register : 

general— -of a Conciliator, pt. II, 13. 

— of agreements under ss. 44, 45, pt. II, 15. 

keeping of — book, pt. II, 16^ 17. 

index of — ,pt. II, 17 ^ 18. 

Registrar : 

appointment of Village — , pt. I, 149. 

instruments not to be valid unless executed before-,pt. 1, 150* 

instruments to be written in the presence of — , pt. 1, 155, 156. 

superintendence of— ,pt. I, 160. 

remittance by — , pt. II, 50, 

returns by — ,pt. I, 30. 

correspondence by — , pt. II, 31. 

refund of fees by — , pt. I, 32. 

appointments and salary of — ,pt I, 49, 56. 

Registration : 

; provisions of Village — discussed, pt. 1, 149, 151, 152, pt. Ill, 

83, 88, 91, 116. 
instruments requiring — , 152, 153. 
— of a Kabuliyat, pt. 1, 153, 154. 
— of a balance of account, pt. 1, 154. 
— of a Will, pt. 1,154. 
— of a sale-deed, pt. 1, 155, 
— of a release, pt. 1, 153. 

procedure of— of instruments under Oh. VIII, pt. 1, 156, 157. 
— under this Act, effect of, pt. 1, 160. 
general provisions of—, pt. II, 19-21. 
procedure of— under ss. 57 and 58, pt. II, 21, 26. 
provisions applicable to— under s. 58, pt. II, 26-29 
object of—, pt. 1, 150, pt. III, 66, 71, 72. 
objections to the provisions of— a pt. HI , 85, 88. 

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xii Index. 

Heguiatiani 

—V of 1827, pt I, 57, 67, pt. Ill, 76s 
— Iofl823,pt.m, 76. 

Relea$ex 

registration of — , pt. 1, 153. 
Bsmandi 

— in oonciliation, pt. I. 136, 

Retrospective : 

the Act how far — , pt. I, 9-1 2« 
objections to provisions being — , pt. Ill, 88. 
provisions relating to imprisonment and attachment are—, 
pt. Ill, 109, 112. 

Revenue law I 

necessity to change — , pt. Ill, 86, 86. 

Revision : 

powers of the District Jndge and Special Judge in — , pt. I, 

141-145, pt. m, 73. 
withdrawal of a suit in — ^ pt. 1, 145. 
an attempt to substitute — , for appeal in all cases, pt. III^ 

110, 111. 
conciliation chapter made subject to — , pt. 11, 111. 
— as a substitute for appeal discussed, pt. Ill, 85, 56, 57, 90^ 

91. 

Review : 

powers of — ,pt 1, 146. 

the exercise of discretion in — , pt. 1, 146, 147. 

notice how far necessary in granting—, pt, I, 148. 

Rvles: 

power of Local Government to make— , pt. I, 132, 161, 182. 
— ^for the management &c., by Collector, pt. 11, 1-4. 
— regulating the procedure of Village-Munsifs, pt. 11, 4-21. 
— for the guidance of Conciliators, pt. I, 132-186 ; pt II, 

11-15. 
—of Village-Registration, pt. II, 16, 66. 

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Index. xiii 

■deed : 

registration of— ,pt. I, 155, 

^al Judge i 

I « District Judge." 

iing crops: 

definition of — ^ pt. I, 32« 

— shall be deemed to be moveable property, pt. I, 98. 

attachment of—, s. 22, pt. Ill, 116, 119, 125. 

Status : 

change of— by change in law, pt. 1, 18, 14, 

„ by change in facts, pt. 1, 15-16. 

„ at different stages, pt. I, 26-28. 

privileges of—, pt. I, 28, 29-30. 
the plea of—, pt. I, 31, 32. 
change of — pendente lite, pt. I, 60. 

Subordinate Judges : 

Jagirdhars to be deemed—, pt. I, 32. 

certain suits to be instituted in Courts of F. C— , pt. 1, 44, 45. 
— not to act as Judges of Small Oanse (courts, pt. I, 45. 
jurisdiction of — in insolvency, Ch. V. 
appointments of —to aid District Judges, pt. I, 139, 140. 
powers of — in superintendence and revision, pt I, 140 
0. P. Code to apply in the Courts of-—, pt. 1, 181. 
powers of — increased, pt. Ill, 73. 
„ discussed, pt. Ill, 89^ ^0. 

Suits : 

the description of — under Ch. II, pt. 1, 33, 34. 

account — , pt. I, 35, 36. 

chapter II, applies to account — , pt. Ill, 108. 

jurisdiction with respect to — , pt, I, 36. 

valuation of redemption — , pt. I, 37, 38. 

— not to be entertained without a conciliator's certificate, 

pt. I, 126. 
filing a private award — no suit, pt. 1, 127. 

--triable by Village munsif, pt. I, 110. 

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xiv Index. 

— falling under els, (w) and (x), pt. I, 39, 40. 

—•referred to in cl. (b), pt. I, 38, 39. 

— for emolnnienis, pt. I, 40. 

— for rent, pt. I, 40, 

— to recover mamvljudi^ pt. I, 41. 

—for the possession of mortgaged property, pt. I, 44. 

— in ejectment, pt. I, 44. 

certain salts to be instituted in courts of F. 0. Sub-Judges, 

pt. 1, 44, 45, 
place of sning, pt. I, 53«55. 
transfer of—, pt. I, 55. 
time fixed in mortgage, immaterial in redemption-suits, pt« I, 

79.80. 
— withdrawn in revision, pt. 1, 145. 
—to be heard by Subordinate Judge of Poona, pi U, 56. 
ditto Hyderabad, Shikarpur, Hala and Larkhana, pt 

II, 56. 
TiOe, pt. 1, 1, 7. 

Transadiim I 

history of—, to be investigated, pt. I, 56, 57, 62, 63. 

mumif : 

appointment of—, pt.^, 110. 

suits triable by — , pt. 7, 110, IIL 

the jurisdiction of—, pt. I, 111. 

revison on the decision of—, pi I, 112, pt III, 129, 

procedure of—, pt I, 113, pt II, 4-11. 

object of the provisions of—, pt. I, 110, pt 111, 72, 73. 

registration of—, pt. 1, 154. 



TBP AT Shri Phootpapbshwar Mudranalaya — Panvbl, 



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